Memorandum on the CEPA Position Paper
1. Appended hereto is the draft Position Paper on CEPA. Since it is intended that this Position Paper will be passed on to and be read by the Mainland authorities, it is prepared in Chinese. This Memorandum aims at providing an executive summary of the contents of the draft Position Paper.
1st Section (para. 1-2)
2. This section is the introduction and contains a summary of the Bar’s views on CEPA.
2nd Section (para. 3-13)
3. The second section can be summarised as follows:
(1) although Annex 4 of CEPA allows Hong Kong permanent residents with Chinese citizenship to sit the Mainland legal qualifying examination, they will only be allowed to practice non-litigation legal work even after they become qualified Mainland lawyers;
(2) this restriction should be removed because:
(a) those Hong Kong residents who can become Mainland lawyers will have to sit the same examination and undergo the same period of training as their Mainland counterparts;
(b) similar restrictions have not been imposed on the other professions included in Annex 4 of CEPA (e.g. medical or dental doctors, accountants and insurance brokers);
(c) Mainlanders who can qualify as a solicitor or barrister under our Legal Practitioners Ordinance do not face similar restriction in Hong Kong;
(d) such restriction is contrary to one of the principles of CEPA, namely, “to achieve mutual benefits, complementarity and joint prosperity”;
(e) as a result of Mainland’s economic growth and its WTO membership, the number of litigation involving foreign elements in the Mainland has increased; however, the number of Mainland lawyers who have the expertise and experience in handling such cases is limited; hence, to allow Hong Kong lawyers to practice litigation in the Mainland will help to satisfy the growing market demand and to enable the Mainland lawyers to gain experience by working with Hong Kong litigators;
(f) since Hong Kong’s legal system receives international recognition, to allow Hong Kong practitioners to practise litigation in the Mainland will enhance foreign investors’ confidence.
3rd Section (para. 14-19)
4. If the above-mentioned restriction is to remain, the Bar’s position is as follows.
5. First, the term “non-litigation legal work” should be clearly defined. The Bar suggests that it should be defined as the legal work undertaken as an advocate from the time a case (whether civil or criminal) is accepted by the Mainland court according to their civil or criminal procedure rules up till the conclusion (i.e. adjudication and execution) thereof.
6. Second, arbitration and all other forms of alternative disputes resolution should be regarded as non-litigation work.
7. Third, under the existing civil and criminal procedure rules in the Mainland, parties who are not qualified Mainland lawyers may be appointed as attorney and represent litigants in court. The restriction in CEPA should not be interpreted to deprive the opportunity of Hong Kong residents who qualified as Mainland lawyers to be so appointed despite they cannot practice litigation work as a Mainland lawyer.
4th Section (para. 20-26)
8. Certain relaxations are granted to Hong Kong law firms with representative office in the Mainland under Annex 4 of CEPA. According to Annex 5 of CEPA, “Hong Kong law firm” is defined as a “registered Hong Kong law firm” in accordance with the Legal Practitioners Ordinance”. This definition does not include barristers practising in Hong Kong since barristers are not required to register under the Legal Practitioners Ordinance. Hence, the Bar suggests the relaxations to be granted to “Hong Kong law firm or barrister” and the term “barrister” be defined as barristers who are qualified to and do practise in Hong Kong.
5th Section (para. 27)
9. Annex 4 of CEPA allows Hong Kong law firms to form association with Mainland law firms. The form of association allowed should be clearly, but flexibly, defined. Apart from partnership and limited company, all other forms of association should be allowed. Further, association with one or more Mainland law firms should be allowed.
6th Section (para. 28)
10. A Joint Steering Committee will be established under Article 19 of CEPA. This Joint Steering Committee is responsible for, amongst others, resolving disputes that may arise during the implementation of CEPA. Apart from resolving disputes through consultation, CEPA have not spelt out any detailed disputes resolution mechanism. In line with similar bilateral or multilateral trade agreement, a detailed and proper disputes resolution mechanism should be set out.
Special Committee on Mainland Practice and Relations
Dated 4th September 2003
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