Articles

Gall Dispute Resolution Newsletter June 2016: Hong Kong Court of Final Appeal confirms that cash-advance product is not a ‘loan’

Gall was instructed to act for Global Merchant Funding Limited against the Secretary for Justice in this landmark appeal (FACC 4/2015) before the Court of Final Appeal (“CFA”). The Court of Appeal and the CFA considered the correct interpretation of the terms of a Merchant Cash Advance Contract (“MCA Contract”) in accordance with the established legal principles to ascertain whether the transactions pursuant to the MCA Contract were in substance a loan under the Money Lenders Ordinance, Cap. 163 (“MLO”).

Article: Recognition and Enforcement of a Mainland Judgment in Hong Kong: First Reported Decision

In the recent case of Chan Sang v Chan Kwok & Ors [2016] HKCU 401 (“Chan Sang v Chan Kwok”), Master Harold Leong held that a Mainland judgment is final and enforceable where a certificate has been issued by the original court to that effect. This is the first reported decision of the Hong Kong courts under the Mainland Judgments (Reciprocal Enforcement) Ordinance (Cap. 597) (the “Ordinance”). The decision affirms the Hong Kong Courts approach to uphold, rather than set aside, judgments issued in the Mainland.

Employment Newsletter May 2016: Hong Kong Court of Appeal confirms implied term of anti-avoidance in employment contracts

Gall was instructed to act for Sunny Tadjudin against the Bank of America in this landmark employment law case. The “Sunny Case” is considered the leading authority in respect of bonus claims in Hong Kong. In the Bank’s latest appeal, the Court considered the issue of whether an anti-avoidance provision can be implied into an employment contract.This judgment has repercussions for all employers in Hong Kong who pay bonuses, especially those in the financial sector. In line with many other jurisdictions, the Court of Appeal confirmed that it is unlawful for Hong Kong employers to terminate an employee’s employment in order to avoid the employee being eligible for assessment of discretionary bonus and payment.Gall’s employment team, led by Nick Gall (Partner), Andrea Randall (Partner) and Stephen Chan (Senior Associate) report on their recent Court of Appeal victory.

Article: Hong Kong CFI Stays Proceedings in favour of Arbitration

In a judgment delivered on 4 March 2016 the Hong Kong CFI has ruled that the court need only be satisfied on a prima facie basis that a valid arbitration agreement applies, in order to stay court proceedings. The case in question is Bluegold Investment Holdings Limited v Kwan Chun Fun Calvin [HCA 1492/2015].The decision confirms Hong Kong’s position as an attractive seat for international arbitration and highlights the importance of ensuring consistency across suites of documents.

Employment Update: Compulsory Reinstatement and Re-engagement of Unreasonably and Unlawfully Dismissed Employees

On 2 March 2016, the Employment (Amendment) Bill 2016 (the “Bill”) was introduced to the Legislative Council. The Bill seeks to empower the Labour Tribunal to make an order for reinstatement or re-engagement as requested by an employee in a case of unreasonable and unlawful dismissal without the need to first secure the employer's agreement. The Bill does not change the current framework in regards to unreasonable dismissals that are not unlawful.

Dispute Resolution Newsletter – December 2015

Court of Final Appeal - Winding Up Foreign Companies in Hong KongOn 11 November 2015, the Court of Final Appeal (the “CFA”) handed down its decision ending the 8-year family feud between members of the second-generation owners of the much-loved Yung Kee restaurant. The CFA ruled that Yung Kee Holdings Limited (the “Company”), be wound up, but gave the parties 28 days within which to discuss a share buy-out. The decision has attracted the close attention of both Hong Kong’s legal community and fans of the iconic family restaurant as it represents a landmark determination on principles concerning the Hong Kong Courts’ jurisdiction to wind up foreign companies.

Employment Newsletter – March 2015

In a judgment that will have repercussions for all employers in Hong Kong, the Hong Kong Court of First Instance rejected arguments that the courts are strictly bound by legislation and express terms of an employment contract. Calling Hong Kong’s employment protection “minimal” and recommending that the courts “exercise judicial creativity” to “maintain a fair balance” between employers and employees, it upheld an employee’s claim that an implied term prevented her employer from dismissing her to avoid paying a bonus.