HONG KONG BUSINESS LAW
INTRODUCTION TO THE HONG KONG SAR LEGAL SYSTEM
Reference Notes:
Vanessa Stott， An Introduction To Hong Kong Business Law， 3rd Edition， Longman
From Chapter 1-The Hong Kong SAR Legal System (pp.23-25)
41. The Interpretation of Legislation (法律解釋權)
Judges interpret the Legislation according to established principles out not otherwise (e.g. looking at speeches made in the legislature as an aid to interpretation not allowed)
The Interpretation and General Clauses Ordinance: as a general rule, an ordinance is deemed to be remedial and will be given such ‘fair, large and liberal' interpretation as will best ensure that it attains its objectives (s 19)
e.g. (1989).
42. The Interpretation of Legislation (法律解釋權)
Common law rules:
The literal rule: words must be given their usual meaning: e.g. Re an infant (1962)
The golden rule: where the application of the literals rule results in more than one possible interpretation, the court will adopt the interpretation which avoids an absurd result: e.g. The Club Lusitanian vote Director of Public Works (1961)
43. The Interpretation of Legislation (法律解釋權)
The mischief rule: any ambiguity may be resolved by considering the ‘mischief'’ which the ordinance is apparently intended to correct. Mischief means the overall spirit and purpose of the relevant regulation~
Elude generic rule: applies whenever an ordinance refers to class of things: e.g, cats, dogs and other domestic animals': a snake≠a domestic animal even if it is a pet because it is not like a cat or a dog..
44. The Interpretation of Legislation (法律解釋權)
Power of the Standing Committee of the National People's Congress (人大 常委會) to interpret the Basic Law: e.g. The right of abode cases
45. Resolving Business Disputes
Arbitration (仲裁) :
Ø Parties agreed in a contract to appoint an independent person (called an ‘arbitrator') to act like a judge to determine disputes
Ø Proceedings governed by the Arbitration Ordinance
Ø Settlement reached: a settlement agreement will be drawn up
Ø If no settlement, the arbitrator will hear the parties' cases and make his decision (called an ‘Award')
46. Resolving Business Disputes
Ø The winning party can apply to court to enforce the Award as if it were a court judgment
Ø The Court of First Instance has power to confirm, vary, set aside the Award on grounds of error of law
Appeal from The Court of First Instance lies to the Court of Appeal, but only with leave of the Court of Ape
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