The Rt. Hon. Lord Justice Hamblen [Judge of the Court of Appeal, England
and Wales], Mr. Andrew Heyn [British Consul General to the HKSAR and
Macao SAR], Lord Pannick QC, our Guests and Speakers from the United
Kingdom, Fellow Members of the Legal Profession, Colleagues,
Distinguished Guests, Ladies and Gentlemen,
- First of all, thank you for joining us at this Brexit Conference. On
behalf of the Department of Justice, may I extend our warmest
welcome to all of you here, and in particular, to our overseas guest
speakers who travelled all the way to Hong Kong to take part in this
- Today, we are very privileged to have a number of leading figures
of the British and local legal communities joining us in this
conference. Before handing over the floor to our speakers, may I set
the scene by briefly addressing two questions, namely: (1) why the
Department of Justice organises this conference; and (2) why we
pick the two areas which form the themes of this conference.
- Dealing with the first question first: why we organise this
- Ever since the result of the EU Referendum was known, the British
Government has taken various steps for effecting and managing the
exit process. Apart from giving the Article 50 Notice, other
examples of such steps include the 12 principles announced by the
Prime Minister Theresa May on 17 January 2017, the publication of
the White Paper which sets out the basis of the 12 Principles, as
well as the introduction of the European Union (Withdrawal Bill) in
July 2017 which aims to transpose EU law onto the UK statute
book to avoid legal vacuum when the UK eventually leaves the EU
in March 2019. In addition, the British Government have published
other papers, such as the Position Paper on Judicial Cooperation in
Civil and Commercial Matters (published in July 2017), as well as
the paper entitled “Providing a Cross-border civil judicial
cooperation framework: A Future Partnership Paper” published in
- These steps have attracted considerable attentions and discussions
both within the UK and at the international level. In the legal
community, questions have been raised as to how these steps would
affect the future development of UK law. For instance, some
commentators have asked what exactly would be the status of those
EU legislation which would be converted and transformed to
become part of the domestic law of the UK (which is the aim of
clause 3 of the EU (Withdrawal) Bill)? Indeed, the House of Lords
Constitution Committee have once pointed out that the direct EU
legislation incorporated by clause 3 and the EU law incorporated by
clause 4 have “no equivalent status in UK law and the Bill makes
no provision for them”1. Further, clause 3(3) of the Bill introduces
the novel concept of a law being “operative”, and the Bar Council
of England and Wales has once expressed concerns as to whether
this new concept will lead to uncertainty.
- Hong Kong has a close connection with the UK, whether in terms
of trade, commerce or otherwise. Not only have a lot of British and
European companies set up offices in Hong Kong, a lot of Hong
Kong enterprises have business connections with the UK and other
members of the EU. These business people and their legal advisers
are understandably concerned with the future development of Brexit,
including how the exit measures would impact upon the future of
the UK legal system. Indeed, the impacts would go beyond the
commercial community. For instance, certain matrimonial law
practitioners have pointed out that some “international family”
might also be in one way or another affected by the outcome of the
Brexit measures, especially when a divorce takes place2.
- It is against this background that the Department of Justice believes
that we should find out more as to what is happening in the Brexit
process, so that the legal community in Hong Kong can understand
more and be better equipped to deal with such issues as may arise in
- Moving on, if I may, to the second question: why do we choose the
two main areas which form the theme of today’s conference?
- To begin with, we are very lucky to have Lord Pannick QC to be
our keynote speaker today. As you would know, the Miller case3
is first important litigation since the EU Referendum. The case has
attracted much attention. Indeed Lord Neuberger, in a recent
interview conducted in Hong Kong, described the Miller case as his
“most memorable case”4. Lord Pannick QC, being the leading
counsel acting for Mrs. Miller (the 1st Respondent in the appeal)5
, is surely one of the best persons to tell us more about the case, as well
as to share with us his views on the post-Brexit development of the
UK legal system.
- Lord Pannick QC’s keynote speech will be followed by Session I of
this conference, which focuses on the legal implication of Brexit on
the development of common law as well as the legal and dispute
resolution professions in the UK and Hong Kong. Session II, on the
other hand, will focus on the impact of Brexit on judicial
cooperation in civil and commercial matters in EU and the
international community, including the recognition and enforcement
- Under the “one country, two systems” policy, Hong Kong retains
the common law legal system after it became one of the special
administrative regions of the People’s Republic of China. Article 84
of our Basic Law expressly provides that our courts, when
adjudicating cases, “may refer to precedents of other common law
jurisdictions”. This provision has enabled Hong Kong to develop its
own common law since 1 July 1997.
- Lord Millett, one of the NPJ of our Court of Final Appeal pointed
out in the case of China Field Ltd. v Appeal Tribunal (Building) (No.
2), “the common law is no longer monolithic but may evolve
differently in the various common law jurisdictions”6
. Further, in the case of Solicitor (24/07) v Law Society of Hong Kong, our
former Chief Justice pointed out as follows7:
“After 1 July 1997, in the new constitutional order, it is of the
greatest importance that the courts in Hong Kong should continue
to derive assistance from overseas jurisprudence. This includes the
decisions of final appellate courts in various common law
jurisdictions as well as decisions of supra-national courts, such as
the European Court of Human Rights. Compared to many common
law jurisdictions, Hong Kong is a relatively small jurisdiction. It is
of great benefit to Hong Kong courts to examine comparative
jurisprudence in seeking the appropriate solution for the problems
which come before them. This is underlined in the Basic Law itself.
Article 84 expressly provides that the courts in Hong Kong may
refer to precedents of other common law jurisdictions.”
- Naturally, the Hong Kong courts from time to time refer to UK
decisions. At times, the Hong Kong courts also refer to EU
jurisprudence, especially in the context of human rights. In the
course of the Brexit discussions and given that there would be a
break with the Court of Justice of the European Union (“CJEU”),
questions have been raised as to whether in future there would be
any divergence between the UK law and the EU jurisprudence on
areas such as human rights and competition law. From the
perspective of long term development of jurisprudence, this and
other related questions are naturally of interest to the Hong Kong
legal community, and we look forward to hearing more from our
speakers. In this regard, apart from our other distinguished guest
speakers who will take part in Session I, we are very lucky to have
the Right Honourable Lord Justice Hamblen of the Court of Appeal
of England and Wales (who is also the Chairman of the European
Sub-committee of the Judge’s Council) to share his insights from
the judicial angle.
- Apart from the future development of the legal system, one other
question often raised in the Brexit discussion concerns the possible
impact on the dispute resolution landscape. Among others, due to
the uncertain future of reciprocal enforcement of judgments to be
made by the UK courts, one question that arises is whether the
international commercial community would be more inclined to opt
for international arbitration, since Brexit would not affect the UK’s
status as a party to the New York Convention, which renders
enforcement of arbitral awards speedy and expeditious. There is
also the question of how other EU members would react in the
context of dispute resolution. For instance, the Netherlands issued
draft plans to become one of several EU members to establish an
English law commercial court targeting international dispute
resolution (which is set to open on 1 January 2018).
- These, and other incidental questions (such as those concerning
, as well as whether London’s status as an
international arbitration centre would be even more consolidated
since Brexit might (according to one view) enable British courts to
issue anti-suit injunctions whereas inter-EU anti-suit injunctions are
incompatible with EU law)9
, will also be explored in the first as
well as the second sessions.
- Before I conclude, may I once again express my gratitude to all our
speakers and moderators. We are most grateful that they take time
out from their hectic schedules to attend this conference and to
share with us their invaluable views on this important topic. May I
also express my gratitude to Mr. Andrew Heyn, the British Consul
General to Hong Kong and Macao, as well as all the other relevant
staff members of the British Consulate in Hong Kong. Their
assistance has been instrumental in making this conference
- On this note, may I wish this conference every success and wish all
of you an enjoyable and fruitful day.
1 See, e.g., “The European Union (Withdrawal) Bill: Retained EU Law”, the Briefing Paper No.
08136 of 9 November 2017 (House of Commons Library) (prepared by Jack Simson Caird and Vaughne
Miller), at p. 18.
2See, e.g., “Eleanor Moodey, “The long farewell: leaving the EU (Part 3)”, New Law Journal, 13
October 2017 Issue, at pp. 11-12.
3  UKSC 5 (24 January 2017).
4 See, Cynthia G. Claytor, “Face to Face with Lord (David) Neuberger of Abbotsbury”, Hong Kong
Lawyer (November 2017 Issue, Official Publication of the Hong Kong Law Society) 15 (at p. 17).
5 Lord Pannick QC is also a member of the House of Lords Constitution Committee which, as
mentioned above, has expressed views on the European Union (Withdrawal) Bill.
6 5 HKLRD 662, at para. 78 (p. 690). See also the observation of Bokhary PJ at para. 11
(pp.669 – 670).
7T(2008) 11 HKCFAR 117, at para. 16 (p. 133).
8See, e.g.: (1) “How could the UK replace the CJEU?”, New Law Journal (10 February 2017 Issue),
at p. 4; and (2) Alison Ross, “Could Brexit Trigger Investment Claims?”, Global Arbitration Review (19
June 2017) pp. 12-14.
9See: James Rogers, Simon Goodall and Charles Golsong, “How will Brexit impact arbitration in
England and Wales?” (Norton Rose Fulbright - 2016), at pp. 17-18.