Investing in Hong Kong

A Q&A guide to investing in Hong Kong.

This Q&A gives an overview of the key factors affecting inward investment, including information on the jurisdiction's legal system; key laws and regulatory authorities; investment restrictions; and details of international treaties, customs and monetary unions. The guide also provides information on investor individuals; visa permits; restrictions on foreign ownership; transfer pricing and thin capitalisation rules; imports and import duties; safety regulations and standards for commercial goods and services; structuring and tax incentives; investment guarantees; recent developments and proposals for reform.

To compare answers across multiple jurisdictions, visit the Investing in... Country Q&A tool.

This Q&A is part of the Investing in…Global Guide. For a full list of contents, please visit www.practicallaw.com/investingin-guide.

Neville Cheng and Wrinky Chan, Ford, Kwan & Company (First Law International Hong Kong, Member Firm)
Contents
1. How does your jurisdiction compare internationally as a destination for inward investment?

Hong Kong's free enterprise and free trade economic policy, the rule of law and a well-educated and industrious workforce all contribute to its international reputation as both a leading manufacturing complex and a major commercial centre within Asia. There is also a sophisticated commercial infrastructure, which includes a major port and an international airport, and there are currently new transport links under construction, such as the Guangzhou-Shenzhen-Hong Kong Express Rail Link.

Since China's accession to the World Trade Organization (WTO) the mainland China market has opened up. Hong Kong is therefore ideal for expanding companies that want to do business in China as it offers easy access to mainland China business opportunities. Additionally, a free trade agreement exists between Hong Kong and mainland China (Closer Economic Partnership Arrangement (CEPA)) and companies investing in mainland China can take advantage of this agreement (see www.gov.hk/en/about/abouthk/factsheets/docs/trade%26industry.pdf). The advantages for Hong Kong products and firms include:

  • Preferential access to the mainland market.

  • Production lines can be set up by foreign investors in Hong Kong to meet the CEPA rules of origin requirements.

  • Services companies can be incorporated in Hong Kong to avail of the service supplier criteria (to qualify companies must be operating in Hong Kong for three to five years) or they can partner with a CEPA-qualified company.

 
2. What types of companies are attracting foreign investment into your jurisdiction and what are the most active sectors?

The following four key industries in Hong Kong have traditionally been the driving force of its economic growth:

  • Financial services.

  • Trading and logistics.

  • Tourism.

  • Professional and producer services (that is, services for use by other companies (intermediate consumption) in the local economy and also services such as import and export, freight transport, trade financing and insurance services).

In 2012, these four industries generated a total of HK$1,166.8 billion value added (that is net value; the value of goods and services produced less the value of goods and services used in production) and employed over 1.7 million people in Hong Kong (Source: The Four Key Industries and Other Selected Industries in the Hong Kong Economy, Hong Kong Monthly Digest of Statistics, April 2014).

These four key industries also provide motivation for other sectors to grow. Emerging industries that are growing and developing include:

  • Cultural and creative industries.

  • Innovation and technology.

  • Testing and certification services.

  • Medical services.

  • Education services.

  • Environmental industries.

 
3. What will be the main factors affecting the market and how do you expect the market to develop?

Hong Kong's economy grew by 2.6% in 2015, slightly slower than the 2.7% growth in 2014. The global economy, which experienced its slowest growth since 2009 amid heightened financial volatility, slowed down global trade and weakened Hong Kong’s exports. The slowdown in inbound tourism also added pressure to the economy. Domestic demand remained the key for driving economic growth and maintaining a strong labour market throughout the year. As the effect of external factors increased, domestic demand weakened, causing the economy to contract in the latter part of 2015 (see http://www.hkeconomy.gov.hk/en/pdf/er_15q4.pdf).

 

Legal system

4. Please briefly outline the government and legal system.

Government structure

Hong Kong is an autonomous Special Administrative Region (SAR) of the People's Republic of China (PRC) (under Hong Kong's constitutional document, the Basic Law), except for defence and foreign affairs, which are under PRC law. Hong Kong autonomy is guaranteed for 50 years (until 2047) (Basic Law). The system of governance is led by a Chief Executive, who is the head of the Hong Kong SAR (HKSAR) and an Executive Council. There is a two-tiered system of representative government and an independent judiciary.

The Chief Executive is elected by an Election Committee and appointed by the Central People's Government. Among other things, the Chief Executive implements the Basic Law, issues executive orders and makes decisions on government policies.

The Executive Council assists the Chief Executive in policy-making. The council also advises on matters regarding bills and subsidiary legislation, and its members (29) are appointed by the Chief Executive. The main administrative and executive governmental functions are carried out by policy bureaux, departments and agencies.

The Legislative Council is the law-making body of the HKSAR. The council debates issues of public interest, examines and approves budgets and is responsible for endorsing appointments and removals of Court of Final Appeal judges and the Chief Judge of the High Court. (See www.gov.hk/en/about/govdirectory/govstructure.htm.)

Legal system

Hong Kong is a former British colony and common law remains the basis of its legal system (Basic Law). Under the One Country Two Systems regime, Hong Kong has its own judiciary system and a Court of Final Appeal and is highly independent from mainland China.

The judiciary is independent from the legislative and executive branches of government. Generally, civil cases are heard by one judge. A jury may also be present in some civil cases (for example, defamation) when the plaintiff or the defendant applies to the court to have the case tried by a jury. Serious criminal offences are decided by a jury, with a majority vote required.

The law court structure in Hong Kong in the order from lowest to highest is as follows:

  • Magistrates' Courts.

  • District Court (includes the Family Court).

  • High Court (comprises the Court of Appeal and the Court of First Instance).

  • Court of Final Appeal.

Other courts include:

  • Family Court.

  • Lands Tribunal.

  • Labour Tribunal.

  • Small Claims Tribunal.

  • Obscene Articles Tribunal.

  • Coroner's Court.

  • Juvenile Court.

The Court of Final Appeal is the highest appellate court and is headed by the Chief Justice.

 
5. What are the key laws and regulatory authorities governing foreign investment in your jurisdiction?

There are no specific laws and regulatory authorities that are designated to govern foreign investment.

 
6. What international treaty organisations and/or economic, customs or monetary unions or free-trade areas is your jurisdiction a member of?

Hong Kong is a party to the following:

  • Convention Relating to International Exhibitions, Paris 1928.

  • Free Trade Agreements (FTAs) with various countries including:

    • Chile;

    • member states of the European Free Trade Association (EFTA States); and

    • New Zealand.

Hong Kong with China has been a World Trade Organization member since 1 January 1995 and a member of the General Agreement on Tariffs and Trade (GATT) since 23 April 1986.

 
7. What other international agreements apply to foreign investment?

Hong Kong has entered into Comprehensive Taxation Agreements/Arrangement (DTAs) with over 30 jurisdictions (see www.ird.gov.hk/eng/tax/dta_inc.htm).

 

Investor individuals

8. Are there any visas, permits or other requirements for foreign individuals entering your jurisdiction for business purposes?

Foreign passport holders who enter Hong Kong SAR (HKSAR) to establish or join a business must have a visa to travel to Hong Kong unless they have certain travel documents such as, for example, a British National (Overseas) Passport or a Hong Kong Certificate of Identity (see www.immd.gov.hk/en/services/hk-visas/visit-transit/visit-visa-entry-permit.html).

Visa applications and all supporting documents must be submitted to the Immigration Department of Hong Kong, either by post or through a local sponsor. Applications can also be submitted through the Chinese diplomatic and consular missions nearest to the applicant's place of residence, where such forms are available. Foreign passport holders who live in mainland China can submit their applications to the Immigration Division of the Office of the Government of the HKSAR in Beijing (Beijing Office).

Nationals of 148 countries can enter Hong Kong without a visa and remain for a short period of time visa-free (see www.immd.gov.hk/en/services/hk-visas/visit-transit/visit-visa-entry-permit.html). They can partake in a limited range of business-related activities but cannot take up employment, or establish or join any business. The business-related activities they can partake in include:

  • Concluding contracts.

  • Submitting tenders.

  • Participating in exhibitions or trade fairs (but they cannot sell goods or supply services directly to the general public, or construct exhibition booths).

  • Participating in civil proceedings.

  • Attending short-term seminars or business meetings.

 
9. Are there any visa waivers or fast-track procedures available for foreign individuals entering your jurisdiction as investors?

There are no visa waivers or fast-track procedures available for foreign individuals entering Hong Kong as investors (see Question 8).

 
10. What are the circumstances under which an individual becomes liable to pay tax in your jurisdiction? Can individuals be liable for tax on foreign-source income?

Businesses

Individuals are liable to pay tax on Hong Kong-source profits only (territorial-source); foreign-source profits are not subject to Hong Kong profits tax. Profits from sole proprietorships, trades, professions or business carried out in Hong Kong are therefore subject to profits tax. Under the territorial-source principle of taxation:

  • Purchases and sales contracts effected in Hong Kong are subject to profits tax. However, other relevant facts are also examined to determine the source of profits.

  • Sales contracts for sales to Hong Kong customers are usually considered effected in Hong Kong. This includes where the buying office of overseas customers is based in Hong Kong.

  • Purchases and sales contracts conducted by telephone, or other electronic means including the internet, are considered effected in Hong Kong.

  • Trading profits are either wholly taxable or wholly non-taxable in Hong Kong; profits are not apportioned.

Employees

Employees working in Hong Kong are subject to salaries tax in relation to both Hong Kong and non-Hong Kong employment.

Hong Kong employment. Employees with Hong Kong employment must include all of their earnings in their assessable income. However, persons with Hong Kong employment who render all their services outside Hong Kong and who stay in Hong Kong for less than 60 days in a year of assessment are exempted from Hong Kong tax on all their employment income for that year.

Persons employed as directors of a Hong Kong company are considered office holders. The place of service is where the central management and control of the company is located and all their services are considered as provided in Hong Kong irrespective of where the director resides.

Non-Hong Kong employment. The tax liability of employees who have non-Hong Kong employment (for example, if an employee is assigned to work in Hong Kong for a few years and the employee has to perform part of his duties in other countries) is assessed according to the days the employee spends in Hong Kong during each year of assessment.

(See also Questions 22 and 23.)

 

Investment restrictions

11. Are there any restrictions on foreign ownership and investment in specific industry sectors? Do any formalities, permit or notification requirements apply?

Generally, there are no restrictions on foreign investment in Hong Kong. The exception is broadcasting and cable, where foreign ownership cannot exceed 49%.

 
12. Does the government retain and exercise control over certain industry sectors? If so how?

The government retains and exercises control over certain industries including state-owned activities, such as Hong Kong Link 2004 Limited, a company owned by the government of Hong Kong created to securitise revenue from five government-owned toll tunnels and the Lantau Link. The Hong Kong Government is also the controlling shareholder with about 76% shareholding in the Mass Transit Railway (the Hong Kong subway train).

In the broadcasting and cable, sector foreign ownership cannot exceed 49%.

 
13. Are there restrictions on foreign ownership or occupation of real estate? Do any formalities, permit or notification requirements apply?

There are no restrictions on foreign ownership or occupation of real estate in Hong Kong.

However, foreign buyers and companies (including Hong Kong companies) are liable to pay extra stamp duty, Buyer's Stamp Duty (BSD), on real estate purchases in Hong Kong (see Question 22).

 
14. Are there any minimum capital requirements for foreign investment?

Under the Companies Ordinance (Cap. 622, Laws of Hong Kong), there is no minimum Hong Kong company paid-up capital requirement.

 
15. Are there any exchange control or currency regulations? Are there any restrictions on the remittance of profits abroad?

There are no exchange control or currency regulations in Hong Kong and there is free flow of capital into and out of Hong Kong (Article 112, Basic Law). There are no restrictions on the remittance of profits abroad. There is no withholding tax in Hong Kong and persons who earn a profit in Hong Kong can remit that profit out of Hong Kong before the tax thereon is paid or cleared.

 

Imports

16. Are there any restrictions on the importation of commercial goods?

Generally, there are no restrictions on importing commercial goods and services. However, importing or exporting any prohibited/controlled item into or out of the Hong Kong SAR is governed by legislation. Prohibited articles are goods the import, export or transit of which are prohibited or controlled under the provisions of the Import and Export Ordinance (Cap. 60, Laws of Hong Kong).

Prohibited/controlled items include:

  • Dangerous drugs, psychotropic substances, controlled chemicals, and antibiotics.

  • Arms, ammunition, and fireworks.

  • Rough diamonds.

  • Animals, plants, and endangered species.

  • Telecommunication equipment.

  • Game, meat and poultry.

 
17. What import duties apply to commercial goods?

Hong Kong is a free port and there is no customs tariff on goods imported into Hong Kong. The Hong Kong SAR government collects an excise duty on only four types of goods irrespective of whether they are imported or manufactured locally:

  • Tobacco.

  • Hydrocarbon oil.

  • Alcoholic beverages.

  • Methyl alcohol.

Tax is also payable on motor vehicles when first registered.

 
18. Are the safety regulations and standards applicable to commercial goods in your jurisdiction compatible with other standards that are recognised internationally?

There are various safety regulations including:

  • Consumer Goods Safety Ordinance (Cap.456).

  • Electricity Products (Safety) Regulation.

Consumer Goods Safety Ordinance (Cap.456) (CGS Ordinance) . This is the main piece of legislation dealing with product safety requirements. All consumer goods (except those listed in the Schedule to the ordinance, such as food and water, aircraft, motor vehicles and electrical products) must comply with the general safety requirements or the safety standards and specifications prescribed by the Secretary for Commerce and Economic Development of Hong Kong (CGS Ordinance).

Manufacturers, importers and suppliers have a duty to ensure that the consumer goods they supply are reasonably safe, including in (CGS Ordinance):

  • The way the goods are presented, promoted and marketed.

  • The use of any mark and instructions or warnings they give for keeping, using or consuming the goods.

Manufacturers, importers and suppliers must also adhere to safety standards published by standards institutes or similar bodies for consumer goods when describing the goods or for matters relating to such goods. Any reasonable means to make the goods safer should be considered and implemented. A due diligence defence exists under the ordinance.

Any person who sells unsafe goods commits an offence and is liable to (CGS Ordinance):

  • HK$100,000 fine and one year imprisonment on first conviction.

  • HK$500,000 fine and two-year imprisonment on subsequent conviction.

The unsafe goods can also be seized by the Customs and Excise Department and other authorised officers. Authorised officers are officers that hold an office specified in Schedule 1 to the Customs and Excise Service Ordinance (Cap. 342, Laws of Hong Kong) (CESO) or officers appointed by the Commissioner of Customs and Excise under section 18 of the CESO.

Electricity Products (Safety) Regulation. The Electricity Products (Safety) Regulation (Cap. 406G, Laws of Hong Kong) (EP Safety Regulation) sets out the essential safety requirements for electrical products designed for household use and supplied in Hong Kong.

Both of the following statutes seek to supplement the common law position and provide further protection to consumers or users as contracting parties:

  • Sale of Goods Ordinance (Cap. 26, Laws of Hong Kong). Sale of goods contracts are mainly governed by this ordinance. Safety and suitability requirements of goods are often considered implied terms in the sales contracts and certain implied terms or conditions and warranties are governed by this ordinance.

  • Control of Exemption Clauses Ordinance (Cap. 71, Laws of Hong Kong). This ordinance governs civil liability. It governs any terms in the contract that seek to avoid liability for breach of contract, negligence or other types of breaches of duty.

 
19. Are there any similar or equivalent restrictions on providing services into another jurisdiction?

There are no restrictions on providing services into another jurisdiction.

 

Structuring and tax

20. How is foreign investment into your jurisdiction typically structured? What forms of legal vehicle are attractive to foreign investors?

The most common forms of business vehicles include public and private limited liability companies, partnerships, sole proprietorships and branches of foreign corporations.

Limited companies

Limited companies (private and public) are the most commonly used company type in Hong Kong. Owners of limited companies incorporated in Hong Kong can take advantage of the tax benefits and other concessions available as Hong Kong has one of the lowest tax rates worldwide. Currently, the profits tax rate is 16.5% for incorporated businesses. There is no capital gain tax. Dividend income is also not subject to profits tax. This includes the Closer Economic Partnership Arrangement (CEPA) (see Question 1).

The Companies Registry processes applications for incorporating local limited companies and registrations of non-Hong Kong companies that were incorporated outside Hong Kong and have established a place of business in Hong Kong (see Online resources).

Partnerships

Partnerships exist where persons carry on a business in common to make a profit (Partnership Ordinance). Every partner in a firm is jointly liable with the other partners for all the business's debts and obligations incurred while he is a partner.

A limited liability partnership (LLP) can also be formed under the Limited Partnership Ordinance (Cap. 37, Laws of Hong Kong). In an LLP one or more general partners is held liable without limit for the business's debts while other partners' liabilities are limited.

Sole proprietorships

Traders must apply for a business licence from the Business Registration Office at the Companies Registry (see Online resources) to trade as sole proprietorships. Applications must be made within one month of commencing the business.

Branch offices

A company incorporated outside Hong Kong that establishes a place of business in Hong Kong must register with the Companies Registry as a "Registered Non-Hong Kong Company". This is a branch office and is not a separate legal entity from its parent. The branch must be registered within one month of establishing the business in Hong Kong. There must be an authorised person in Hong Kong that can accept service of legal documents, which can be either:

  • A natural person who is ordinarily residing in Hong Kong.

  • A firm of solicitors or certified public accountants (practising).

 
21. What are the circumstances under which a business becomes liable to pay tax in your jurisdiction?

Generally, Hong Kong adopts a territorial-source principle of taxation under which tax is charged only on profits from a trade, profession or business carried out in Hong Kong. Profits made outside Hong Kong are therefore not subject to tax.

The following sums are excluded from assessable profits:

  • Dividends received from corporations that are subject to Hong Kong profits tax (see Question 10).

  • Amounts already included in the assessable profits of persons subject to profits tax.

  • Interest on tax reserve certificates.

  • Interest and profits on bonds issued under the Loans Ordinance (Cap.61) or the Loans (Government Bonds) Ordinance (Cap.64), or on exchange fund debt instruments or Hong Kong dollar-denominated multilateral agency debt instruments.

  • Interest income and trading profits derived from long term debt instruments.

  • Sums received or accrued for a specified investment scheme by or to an individual as:

    • a person subject to profits tax on mutual funds, unit trusts or similar investment schemes that are authorised as collective investment schemes under section 104 of the Securities and Futures Ordinance (Cap.571); or

    • a person subject to profits tax on mutual funds, unit trusts or similar investment schemes where the commissioner is satisfied that the mutual fund, unit trust or investment scheme is a bona fide widely held investment scheme that complies with the requirements of a supervisory authority within an acceptable regulatory regime.

See also Question 22.

 
22. What are the main business tax rates?

Profits tax

All persons, including corporations, partnerships, trustees and persons carrying out trades, professions or business in Hong Kong are subject to tax on all profits that arise in or derive from Hong Kong at the following rates:

  • Corporations: 16.5%.

  • Unincorporated businesses: 15%.

Profits from the sale of capital assets are not subject to tax as there is no capital gains tax payable in Hong Kong.

(See also Questions 10 and 23.)

Property tax

All rental income derived from letting properties in Hong Kong is subject to property tax at 15%. All rental income must be reported in annual tax returns.

Stamp duty

Documents that evidence certain kinds of transaction are subject to stamp duty (Stamp Duty Ordinance), including tenancy agreements, agreements for the sale of immovable property and transfer documents for Hong Kong stocks. The transactions themselves are not subject to stamp duty.

The various duties include:

  • Ad valorem stamp duty. Stamp duty on sale or transfer of immovable property in Hong Kong is chargeable with ad valorem stamp duty at higher rates calculated at Scale 1 or Scale 2. For a property that is valued up to HK$2,000,000, the ad valorem stamp duty is charged at 1.5%. There are some specific exemptions, for example where the residential property is acquired by a Hong Kong Permanent Resident who is acting on his own behalf and does not own any other residential property in Hong Kong at the time of acquisition.

  • Special stamp duty (SSD). SSD is applicable on resale of residential property if sold within a certain period of the acquisition date. For example, if a residential property is resold within six months, a special stamp duty at 20% of the value of the property is charged. SSD is imposed in addition to the ad valorem stamp duty, with a few exemptions, for example, where close relative(s) (that is, spouse, parents, children, brothers or sisters) of the original purchaser(s) are nominated to take up the assignment of the residential property.

  • Buyer' s stamp duty (BSD). Acquisition of Hong Kong residential properties by any person (including Hong Kong and foreign companies) other than a Hong Kong permanent resident (HKPR) who acquires the property on his own behalf (that is, the person is both the legal and beneficial owner) is subject to BSD. A flat rate of 15% is charged on the higher of either:

    • the stated consideration; or

    • the market value of the property acquired.

    Unless specifically exempted, BSD is payable on residential property sale or conveyance agreements executed on or after 27 October 2012.

 
23. What is the tax treatment in your jurisdiction of profits from an investee company remitted outside your jurisdiction by an investor?

No tax is imposed on profits remitted abroad. However, tax is imposed on profits from a trade, profession or business carried out in Hong Kong (see Question 22).

 
24. What transfer pricing and/or thin capitalisation restrictions may apply to investments into your jurisdiction from elsewhere?

Transfer pricing

There is no legislation that specifically refers to the adjustment of prices for related transactions or requirements to comply with the arm's length principle. However, the Departmental Interpretation and Practice Notes No.46 issued by the Inland Revenue Department of Hong Kong refers to the arm's length principle. Profits tax charged must be adjusted to reflect the position that would have existed if the arm's length principle had been applied instead of the actual price transacted between the enterprises (Departmental Interpretation and Practice Notes No.46, Inland Revenue Department, Hong Kong). The Departmental Interpretation and Practice Notes No.46 is not legally binding and as there have not been many cases in relation to this area its application remains unclear.

Thin capitalisation

There are no thin capitalisation rules. However, there are limitations on interest deduction, especially for interest paid to non-residents that are not financial institutions.

 

Incentives

25. What tax incentive or other schemes exist to encourage foreign investment?

There are no incentive regimes to overseas investors. However, Hong Kong has low tax rates (see Question 22), compared with other jurisdictions, and there is no capital gains tax. Additionally, interest income received by individuals from bank deposits and dividends received from corporations are exempt from profits tax.

 

Investment guarantees

26. What legal guarantees exist against expropriation and/or provide for appropriate compensation? What is your government's track record in this regard?

Private property rights are protected under Article 105 of the Basic Law and compensation is available as a remedy for lawful deprivation of property (Article 105, Basic Law).

The Hong Kong government has a positive track record in this regard. One of the biggest cases of expropriation in Hong Kong is the demolition of the Kowloon Walled City, which was a densely populated, largely ungoverned settlement in Hong Kong. In 1991-1992, the government distributed about HK$2.7 billion in compensation to the estimated 33,000 residents and businesses for the demolition of the Kowloon Walled City.

 
27. Are there any issues in relation to the enforcement of intellectual property rights?

The following intellectual property rights are protected and enforced:

  • Trade marks (Trade Marks Ordinance, Cap. 559, Laws of Hong Kong).

  • Patents (Patents Ordinance, Cap. 519, Laws of Hong Kong).

  • Registered designs (Registered Designs Ordinance, Cap. 522, Laws of Hong Kong).

  • Copyrights: It is not necessary to register a copyright in Hong Kong to get protection under Hong Kong law.

  • Plant varieties: The Plant Varieties Protection Ordinance (Cap. 490) provides that plant breeders can apply for proprietary rights over cultivated plant varieties they have bred.

  • Layout design of integrated circuits: The Layout-Design (Topography) of Integrated Circuits Ordinance establishes an intellectual property regime for the protection of layout-designs (topographies) of integrated circuits that is similar to the protection given under copyright law; however, these designs cannot be adequately protected under copyright law due to their functional nature. This intellectual property right is specifically related to the chip of semi-conductor devices such as transistors and passive electronic components such as resistors and interconnections.

Hong Kong has a robust copyright and trade mark infringement enforcement regime. Civil remedies are available for infringement of copyright and trade marks. Infringements are also subject to criminal sanctions, which are enforced by the Intellectual Property Investigation Bureau and the Special Task Force.

 
28. Are there any issues in relation to the gaining and enforcement of judgments and/or arbitral awards?

The Courts of the Hong Kong SAR (HKSAR) agree to enforce the awards made under the Arbitration Law of the People's Republic of China (PRC) by the arbitral authorities in mainland China and the People's Courts of Mainland China agree to enforce the awards made in the HKSAR under the Arbitral Ordinance of the HKSAR (Article 95, Basic Law and through mutual consultations between the Supreme People' s Court and the Government of the HKSAR).

Hong Kong (as part of the PRC) is a party to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (New York Convention). Under the New York Convention, arbitral awards of more than 140 foreign countries that are signatories to the convention are summarily enforceable in Hong Kong with the leave of the court.

Arbitral awards of foreign countries that are not party to the New York Convention are also summarily enforceable with leave of the court. The Arbitration Ordinance (Cap. 609, Laws of Hong Kong) covers enforcement of awards that are not made in a New York Convention state or in mainland China. Under this ordinance the court can enforce such awards on a discretionary basis without the need to demonstrate reciprocity. The Arbitration Ordinance also specifies the grounds on which enforcement of such awards may be refused. These grounds are essentially the same as those available under the New York Convention. However, under Section 86(2)(c) of the Arbitration Ordinance, the court can refuse to enforce an arbitral award "for any other reason that the court considers it just to do so". The common law position on the enforcement of non-Convention awards is that the court will refuse leave to enforce only if there are real grounds for doubting the validity of the award, or where the award is not in a form that can be entered as a judgment. Therefore, it is possible that section 86(2)(c) is intended to preserve these residual grounds for refusing enforcement even if they do not fall within any of the New York Convention grounds for non-enforcement.

 

Recent developments and proposals for reform

29. Have there been any significant recent or proposed legal developments affecting investors?

The main recent developments are in the areas of competition law and company law.

Competition law. On 14 December 2015, the Competition Ordinance came into force and the Competition Commission started operating. The Competition Ordinance prohibits:

  • Cartel conduct (that is, an agreement between competing firms to control prices or exclude entry of a new competitor in a market).

  • Abuses of market power.

  • Other forms of anti-competitive conduct.

The above prohibitions are subject several exemptions, including:

  • Exemptions based on efficiencies and minimum turnover.

  • Block exemptions.

Merger control continues to be limited to the telecommunications sector. In particular, the new regime introduces the following competition rules:

  • The first conduct rule which prohibits undertakings from:

    • making or giving effect to agreements or decisions; or

    • engaging in concerted practices that have as their object or effect the prevention, restriction or distortion of competition in Hong Kong.

  • The second conduct rule which prohibits undertakings that have a substantial degree of market power in a market from engaging in conduct that has as its object or effect the prevention, restriction or distortion of competition in Hong Kong.

  • The merger control rule which prohibits mergers that have or are likely to have the effect of substantially lessening competition in Hong Kong. The scope of application of the merger rule is limited to carrier licences issued under the Telecommunications Ordinance (Cap. 106).

Company law. There have been recent amendments to the Companies Ordinance in Hong Kong. The new Companies Ordinance came into effect on 3 March 2014 and the main changes are as follows:

  • Abolition of the memorandum of association. The new Companies Ordinance abolishes the requirement to have a memorandum of association as a constitutional document of a local company. Companies incorporated in Hong Kong under the new Companies Ordinance need only have Articles of Association. A company can set out its objective, which is effectively the corporate capacity and power, in the memorandum of association.

  • Abolition of par value of shares.

  • Requirement that every private company must have at least one director who is a natural person.

  • Codification of directors' duty of care, skill and diligence.

  • Prohibition of companies to make loans to directors, or directors of holding companies, or to Hong Kong incorporated companies controlled by the same directors.

  • More extensive disclosure of interests by directors.

  • Dispensation of the holding of Annual General Meetings with unanimous shareholders' approval.

  • Setting out a certain procedure for the proposing of and passing of written resolutions.

  • Abolition of the mandatory requirement of having a metallic company seal and making it optional.

  • Widened range of persons who may be liable for breach of the new Companies Ordinance.

 
30. Are there any planned or on-going treaty negotiations or political developments that could have an impact on your jurisdiction's bilateral relationships with other nations and/or other economic, customs or monetary unions, free-trade areas or markets?

The government of Hong Kong is negotiating a Free Trade Agreement (FTA) with the Association of Southeast Asian Nations (ASEAN) covering some key elements including rules of origin and liberation of trade in services, and promotion and protection of investment. It is expected that all six rounds of negotiations for the free trade agreements between Hong Kong and ASEAN countries will be completed by 2016.

Hong Kong is currently undergoing negotiations with the following countries in relation to Comprehensive Double Taxation Agreements (DTAs): Bahrain, Bangladesh, Finland, Germany, India, Israel, Latvia, Macao SAR, Mauritius, Pakistan, Romania, Russian Federation and Saudi Arabia.

Some of these DTAs are already in force (see www.ird.gov.hk/eng/tax/dta3.htm).

 

Main investment organisations

Hong Kong Chinese Industry and Commerce Association

Main activities. The Hong Kong Chinese Industry and Commerce Association is a non-profit business association that aims at helping members develop together.

W www.hkcica.org.hk

Hong Kong Small and Medium Enterprises Association

Main activities. The Hong Kong Small and Medium Enterprises Association aims at assisting small and medium enterprises and preserving their rights and discovering new opportunities for them.

W www.hksmega.org

Association for Sustainable & Responsible Investment in Asia (ASrIA)

Main activities. ASrIA provides leadership, helps to build capacity and leverages the expertise to promote the development of sustainable financial markets and systems in Asia.

W www.asria.org

Hong Kong General Chamber of Commerce

Main activities. The Hong Kong General Chamber of Commerce members represent a wide spectrum of local, Mainland Chinese and international businesses. More than half of the flagship corporations listed on the Hang Seng Index are its members.

W www.chamber.org.hk

Hong Kong Chinese Importers' and Exporters' Association

Main activities. The Hong Kong Chinese Importers' and Exporters' Association has over 3000 members that come from nearly 60 industries; mostly professionals engaged in the import and export trade or closely related to the business.

W www.hkciea.org.hk



Online resources

InvestHK

W www.investhk.gov.hk/index.html

Description. Official, up-to-date website for investing in Hong Kong maintained by the Hong Kong government.

Taxation in Hong Kong

W www.gov.hk/en/nonresidents/workinghk/taxinhk

Description. Official, up-to-date website for tax computation in Hong Kong maintained by the Hong Kong government.

Companies Registry

W www.cr.gov.hk

Description. Official, up-to-date website maintained by the Hong Kong government.

Entry Permit Requirements for the Hong Kong Special Administrative Region

W www.immd.gov.hk/en/services/hk-visas/visit-transit/visit-visa-entry-permit.html

Description. Official, up-to-date website with information on visa requirements, maintained by the Hong Kong government.



Contributor profiles

Neville Cheng, Partner

Ford, Kwan & Company

T +852 2810 8388
F +852 2810 6537
E ncheng@fordkwan.com
W www.fordkwan.com

First Law International Member Firm (Chambers Global Elite Network)

Professional qualifications. Chartered Certified Accountant, 1990; Admitted as a solicitor of Hong Kong, 1994; Admitted as a solicitor of England and Wales, 1995

Areas of practice. China practice; corporate finance; listing; mergers and acquisitions; taxation; corporate and commercial; commercial litigation and arbitration.

Non-professional qualifications. Bachelor of Laws, University of London

Recent transactions. Acting for various PRC stated-owned enterprises in the acquisitions of private companies in Hong Kong.

Languages. Mandarin, Cantonese, English

Professional associations/memberships. Fellow Member of the Association of Chartered Certified Accountants of the UK; Member of the Hong Kong Institute of Certified Public Accountants; Arbitrator of Ningbo Arbitration Commission; China-appointed Attesting Officer; Member of the Law Society of Hong Kong.

Wrinky Chan, Associate

Ford, Kwan & Company

T +852 2810 8388
F +852 2810 6537
E wrinkychan@fordkwan.com
W www.fordkwan.com

First Law International Member Firm (Chambers Global Elite Network)

Professional qualifications. Admitted as a solicitor of Hong Kong in February 2015

Areas of practice. Corporate and commercial; commercial litigation and arbitration.

Non-professional qualifications. Bachelor of Laws, University of Sydney; Bachelor of Commerce in Accounting, University of Sydney

Recent transactions. Acting for various PRC state-owned enterprises in the acquisitions of private companies in Hong Kong.

Languages. Mandarin, Cantonese, English

Professional associations/memberships. Member of the Law Society of Hong Kong.


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