In FG Hemisphere Associates LLC v Democratic Republic of Congo & Ors [2009] 1 HKC 111, the Court helpfully expressed its "provisional view" that, following the handover of Hong Kong to the PRC, the Hong Kong law on state immunity had reverted to the old common law position.

The case arose from the enforcement of two arbitral awards in Hong Kong. As part of its judgment, the court considered the question of whether Hong Kong law adheres to the doctrine of absolute or restrictive state immunity, following the handover in 1997. Under the doctrine of absolute immunity, a state normally enjoys "absolute immunity" from all suits in the courts of another state. In contrast, under the restrictive immunity theory, states do not enjoy immunity from suit where they are engaged in transactions of a purely commercial nature.

Prior to the handover, the UK State Immunity Act 1978 (SIA) applied, and the restrictive theory was followed in Hong Kong. By contrast, in the past, the PRC has adhered to the absolute theory. However, the position after the handover was unclear. Reyes J considered:

Although not part of the ratio, after a detailed review of these options, Reyes J expressed the provisional view that theory (a) (based on the restrictive immunity theory) applied in Hong Kong. Reyes J also expressed the view that the issue of state immunity was not a matter of foreign affairs, and therefore articles 13 and 19 of the Basic Law do not apply. The decision provides useful provisional guidance on the approach that the courts might adopt in this ambiguous area of the law. If the view of Reyes J is adopted in subsequent cases, it appears that parties may be able to rely upon the 'commercial' exception to state immunity in respect of enforcement of arbitration awards in Hong Kong.