The 1987 Sino-Polish Treaty on Legal Assistance in Civil and Criminal Matters is Not Applicable to Judgments of Hong Kong


By an order made on 6 March 2012, the Court of Appeal dismissed the complaint of V. M., filed against the order of the Regional Court in W. declaring the judgment of a District Court of the Special Administrative Region of Hong Kong to be enforceable in Poland. An appeal in cassation was lodged with the Supreme Court against the former order by V. M.

The appeal was based on two major grounds: a violation of Article 16 of the 1987 Treaty between the People’s Republic of Poland and the People’s Republic of China on legal assistance in civil and criminal matters in conjunction with Articles 27 and 29 of the Vienna Convention on the Law of Treaties, and a violation of the relevant provisions of the Polish Code of Civil Procedure relating to the recognition and enforcement of foreign judgments.

The Supreme Court (judgment of 11 October 2013, I CSK 451/12) revoked the challenged decision and remanded the case back to the Court of Appeal. It was observed that the signing of the 1987 Treaty, several years before the reincorporation of Hong Kong into China in 1997, raises doubts as to whether the provisions of this Treaty could be applied to judgments of the courts of Hong Kong at all. Pursuant to Article 29 of the Treaty, the Court referred the issue to the Polish Ministry of Foreign Affairs, in order to clarify it through diplomatic channels. As the information obtained proved inconclusive, the Court felt compelled to determine the possibility of applying the 1987 Treaty to the territory of Hong Kong on its own.

It was observed that the signing of the 1987 Treaty, several years before the reincorporation of Hong Kong into China in 1997, raises doubts as to whether the provisions of this Treaty could be applied to judgments of the courts of Hong Kong at all.

According to the Supreme Court, the Hong Kong Special Administrative Region, established upon resuming the exercise of Chinese sovereignty over Hong Kong area in accordance with the 1984 Joint Declaration of the governments of the United Kingdom and the People’s Republic of China, enjoys a high degree of autonomy, including its own judicial system, separate from the one of China. Annex 1 to the Declaration and Article 153 of the Basic Law of the Hong Kong Special Administrative Region both provide that the Chinese government decides whether international agreements to which China is or becomes a party will apply to Hong Kong, taking into account the circumstances and the needs of Hong Kong and the views of its own government. A similar view on the matter has also been expressed in a Chinese notification to the UN Secretary General concerning the status of Hong Kong in relation to treaties deposited with the Secretary General of 20 June 1997.

Consequently, the Court argued, it was imperative to establish whether the government of China had decided to extend the territorial scope of application of the 1987 Treaty between the People’s Republic of Poland and the People’s Republic of China on legal assistance in civil and criminal matters to the area of Hong Kong. The justices found no evidence to support such a claim. To the contrary, the letter of the Polish Ministry of Foreign Affairs of 3 July 2013 indicated that, as far as the Polish government was aware, there had been no such decision. This opinion was confirmed, according to the Court, by the conclusion of a treaty on mutual legal assistance in criminal matters between Poland and Hong Kong in 2005.

The Court also rejected the contention that the refusal to apply the 1987 Treaty by the courts that had heard the case constituted a violation of the ‘moving treaty frontiers’ principle expressed in  Article 29 of the 1969 Vienna Convention on the Law of Treaties. As it rightly observed, although the provision in question provides, in principle, that a treaty is binding upon each party in respect of its entire territory, this rule does not apply if a different intention appears from the treaty, or is established otherwise. In the case at hand it was amply demonstrated that such intention could have been demonstrated. Surprisingly, the Court remained silent as to the violation of Article 27 – presumably because the appellant failed to clearly explain what the alleged violation comprised.

Since the possibility of applying the provisions of the 1987 Treaty to civil judgments of the courts of Hong Kong was excluded, the applicable law in the case was Article 1145 et seq. of the Code of Civil Procedure. The appellant argued that the application for a declaration of enforceability did not meet with the requirements set out in Article 1147, and that his right to a defence in proceedings abroad had been breached.

The Court rejected the former allegation, because it felt that all of the conditions set out in Article 1147 para. 1 in conjunction with Article 1151 para. 2 had been met. In particular, it did not accept the contention that the document stating that the decision was enforceable in the State of origin had been missing. The justices pointed to the fact that judgments of Hong Kong courts are enforceable without the need to take any further steps, and it is unclear whether any court in Hong Kong is entitled to confirm the enforceability of a judgment. Thus a statement of a public notary (a person in whom the power to confer authenticity is vested) that the judgment is enforceable must be considered a document sufficient to meet the requirement of Article 1147 para. 1 point 2 of the Code.

The justices accepted, however, another appellant’s argument, namely that his right of defence before the District Court in Hong Kong had been infringed. They stressed that fair trial requirements may be breached even though all the procedural rules of the State of origin have been complied with. A Polish court is, therefore, under an obligation to assess, on a case by case basis, whether or not a litigant was deprived of these rights in fact, because an evaluation of foreign procedural law alone is not enough. In this case, apart from a sworn statement from an employee of a law office of the respondent, there was no proof of delivery of any notice of hearing, or even of the judgment of the court of Hong Kong to the appellant. The judicial documents were served to Polish company V., in which the appellant was a shareholder, and were received by an unauthorised person. The time-limits set for subsequent actions were short. Finally, the service was not carried out in accordance with Article 1130 et seq. of the Polish Code of Civil Procedure, i.e. through a Polish court. All these factors led the Court to the conclusion that the equality of rights of the litigants before the court in Hong Kong had not been preserved. For these reasons, it set aside the order under appeal, and referred the case back to the Court of Appeal.

Posted on by Szymon Zaręba in International

About the author

Szymon Zaręba
Szymon Zaręba

Ph.D. Candidate and Assistant Researcher in the Institute of Legal Studies of the Polish Academy of Sciences, Ministry of Science and Higher Education grant holder, member of Collegium Invisibile Scientific Association.