Mutual Taking of Evidence in the Mainland and Hong Kong - A Positive Step Forward!
"The Arrangement on Mutual Taking of Evidence in Civil and Commercial Matters between Courts of the Mainland and HKSAR" ("Arrangement") recently came into effect on 1 March 2017. The Arrangement aims at assisting Mainland and HKSAR litigants to obtain evidence in civil and commercial matters with enhanced efficiency and greater certainty. It provides for the terms on which the relevant Mainland and HKSAR authorities, upon request, will provide mutual assistance to each other in the taking of evidence in civil and commercial matters.
Pursuant to the Arrangement, the party requesting assistance must first submit a letter of request ("Letter of Request") and all relevant material (in Chinese or with a Chinese translation) through its designated liaison authorities (i.e. the Higher People's Courts in the Mainland and the Administration Wing of the Chief Secretary for Administration's Office of the HKSAR Government in the HKSAR). Moreover, the Supreme People's Court may make such request directly through the designated liaison authority of the HKSAR.
Upon receipt of the Letter of Request, the relevant designated liaison authority will transfer all documents received to the relevant court or other authorities for processing, or carry out the processing itself. The requested party shall then, to the extent possible, process and complete the request within 6 months from the date of receiving the Letter of Request.
The Arrangement will not bring any change to the law in the taking of evidence in civil and commercial matters, as it will be in accordance with the provisions of the law of the requested party. Furthermore, the evidential material obtained may only be used in the relevant proceedings mentioned in the Letter of Request.
Scope of Assistance
Interestingly, it is notable that the scope of assistance that may be requested by the Mainland and HKSAR courts under the Arrangement is not mirrored.
In seeking the taking of evidence, the People's Court of the Mainland can ask for (1) examination of witnesses; (2) obtaining of documents; (3) inspection, photographing, preservation, custody or detention of any property; (4) taking of samples of any property or carrying out of any experiments on any property; and (5) medical examination of any person.
On the other hand, a Court of the HKSAR can ask for (1) obtaining of statements from parties concerned and testimonies from witnesses; (2) provision of documentary evidence, real evidence, audio-visual information and electronic data; and (3) conduct of site examination and authentication.
Needless to say, the new regime for the mutual taking of evidence is a much welcomed development, especially given the increased number of cross-border disputes in this day and age, and can be seen as another step forward following the arrangement on mutual enforcement of arbitral awards (in 1999) and the reciprocal enforcement of judgments (in 2006) in civil and commercial matters between HKSAR and the Mainland.
The Arrangement provides clear guidance as to the requirements and procedures in place (for instance, what is required to be included in the Letter of Request and to where it should be sent). Not only should the new regime facilitate efficient evidence gathering, it should also enhance efficiency by reducing Court time and legal costs for parties involved in cross-border disputes between HKSAR and the Mainland.
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