Localisation of Laws

At the meeting held on 18 November 1996, Members asked for further information on the nine localisation proposals pending agreement by the Sino-British Joint Liaison Group (JLG).

2. At JLG XXXVIII held on 4-6 December 1996, the two sides reached agreement on the localisation of the Official Secrets Acts. The Official Secrets Bill was gazetted on 13 December 1996 and will be introduced into the Legislative Council on 18 December 1996.

3. The number of localisation proposals pending JLG agreement is now reduced to eight, which are -

  1. Arbitration (International Investment Disputes);

  2. Multilateral Investment Guarantee Agency;

  3. Geneva Conventions;

  4. State Immunity;

  5. Civil Aviation : Stage Two;

  6. Transfer of Sentenced Persons;

  7. Maritime Conventions; and

  8. Outer Space.

Further Information about these eight items are set out in Annexes A-H.

Arbitration (International Investment Disputes)

The localised Bill will provide for the enforcement of arbitration awards made pursuant to the Convention on the Settlement of Investment Disputes between States and Nationals of other States ("the Convention").

2. The Convention was signed in Washington on 18 March 1965. The United Kingdom ratified the Convention and extended it to Hong Kong. China is a party to the Convention. It has been agreed at the JLG that the Convention will continue to apply to the HKSAR after 30 June 1997.

3. The Convention provides for the establishment of the International Centre for Settlement of Investment Disputes. The Centre is an autonomous institution specially designed to facilitate the settlement of investment disputes between a contracting state and foreign investors.

4. The UK Arbitration (International Investment Disputes) Act 1966 ("The Act") gives effect to the Convention. The Act was extended to Hong Kong through the Arbitration (International Investment Disputes) Act 1966 (Application to Colonies, etc) Order 1967. The Act mainly :

  1. provides for the registration of awards rendered pursuant to the Convention; and

  2. confers legal status and appropriate immunities and privileges in Hong Kong on the International Centre for Settlement of Investment Disputes established by the Convention.

5. The Act will cease to have effect in Hong Kong as from 1 July 1997 and hence the need for a localised Bill.

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Multilateral Investment Guarantee Agency

The localised Bill will provide for the enforcement of arbitration awards made pursuant to the Convention establishing the Multilateral Investment Guarantee Agency ("The Convention").

2. The Convention was ratified by the UK on 9 April 1986, and the UK, when ratifying the Convention, did not exclude Hong Kong. China is a party to the Convention. It has been agreed at the JLG that the Convention will continue to apply to the HKSAR after 30 June 1997.

3. The Convention provides for the establishment of the Multilateral Investment Guarantee Agency. The Agency, set up under the auspices of the International Bank for Reconstruction and Development ("the World Bank"), is to encourage the flow of investments for productive purposes among member countries. The Agency issues guarantees, including co-insurance and re-insurance, against non-commercial risks in respect of investments in developing member countries by investors from member countries other than the host country.

4. The UK Multilateral Investment Guarantee Agency Act 1988 ("the Act") gives effect to the Convention. The Act was extended to Hong Kong through the Multilateral Investment Guarantee Agency (Overseas Territories) Order 1988.

5. The Act provides for :

  1. the registration of arbitral awards made pursuant to the Convention; and

  2. the attendance of witnesses, the hearing of evidence and the production of documents.

6. The Act will cease to have effect in Hong Kong as from 1 July 1997 and hence the need for a localised Bill.

Geneva Conventions

The localised Bill will make breaches of certain provisions of the Geneva Conventions punishable by the courts of Hong Kong. The four Geneva Conventions are -

  1. the Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field;

  2. the Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea;

  3. the Convention relative to the Treatment of Prisoners of War; and

  4. the Convention relative to the Protection of Civilian Persons in Time of War.

2. The United Kingdom signed the four Geneva Conventions on 12 August 1949, and included Hong Kong in its ratification of the Geneva Conventions. China is a party to the Geneva Conventions. Agreement has been reached at the JLG that the Geneva Conventions will continue to apply to the HKSAR after 30 June 1997.

3. The UK Geneva Conventions Act 1957 ("The Act") gives effect to the Conventions. The provisions of the 1957 Act, with necessary modifications, were extended to Hong Kong through the Geneva Conventions Acts (Colonial Territories) Order 1959.

4. The Act :

  1. make breaches of certain provisions of the Conventions punishable by the courts, such as : wilful killing, torture or inhuman treatment, extensive destruction and appropriation of properties, depriving a prisoner of war of the rights of fair and regular trial, and unlawful deportation or confinement of civilian persons, etc.;

  2. prohibits the unauthorised use of the Red Cross and certain other emblems.

5. The Act will cease to have effect in Hong Kong as from 1 July 1997 and hence the need for a localised Bill.

State Immunity

The localised Bill will provide that State-owned enterprises cannot claim state immunity when engaging in commercial activities.

2. Under the English common law, it used to be the case before the late 1970s that an independent sovereign State could not be sued in English courts without its consent. However, in most other jurisdictions, this rule of absolute immunity was gradually relaxed and replaced by the doctrine of restrictive immunity. The UK State Immunity Act 1978 ("the Act") reflected this development by providing that a State will not be immune in respect of proceedings relating to commercial transactions or obligations which under contract stand to be performed in whole or in part in the UK. The Act was extended to Hong Kong, with minor adaptations, through the State Immunity (Overseas Territories) Order 1979.

3. The most important provision in the Act is that a State will not be immune in respect of proceedings in relation to commercial dealings. Examples of other proceedings in relation to which immunity is not available are -

  1. in respect of death, injury or loss of property caused by an act involving the State;

  2. in respect of the State’s membership of a body incorporated or constituted under local law;

  3. action against a ship belonging to a State and in use or intended for use for commercial purposes; and

  4. in respect of the State’s liability for customs and excise duties or rates in respect of premises occupied for commercial purposes.

4. The Act will cease to have effect in Hong Kong as from 1 July 1997 and hence the need for a localised Bill.

Civil Aviation : Stage Two

The localised Bill is to provide the necessary statutory power for the continued implementation of the Convention on International Civil Aviation ("The Chicago Convention") and its Annexes relating to international standards and recommended practices. This is a continuation of the "First Stage" Civil Aviation Ordinance enacted in May 1994.

2. The UK ratified the Chicago Convention on 1 March 1947 and included Hong Kong in its ratification. China is a party to the Chicago Convention. It has been agreed at the JLG that the Chicago Convention will continue to apply to the HKSAR after 30 June 1997.

3. The UK Civil Aviation Act 1949 ("The Act") gives effect to the Chicago Convention and its Annexes relating to international standards and recommended practices and the control of air navigation. The Act was extended to Hong Kong through the Civil Aviation Act 1949 (Overseas Territories) Order 1969.

4. Certain provisions of the Act were localised and enacted as the Civil Aviation Ordinance (Cap. 448) in May 1994. The Ordinance contains provisions which, inter alia, safeguard against dangerous flying, provide for air transport licensing and aircraft accident investigation.

5. Other provisions of the Act provide for the regulation of civil aviation. These cover issues including : Air Operators’ Certificates, airworthiness of aircraft, aircrew licensing, air traffic control, aviation documentation, requirements on aeronautical lighting, air navigation equipment and other technical matters.

6. The Act will cease to have effect in Hong Kong as from 1 July 1997 and hence the need for localised legislation.

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Localisation of Laws: Transfer of Sentenced Persons

The localised Bill will permit transfer of sentenced persons (TSP) between Hong Kong and other countries -

2. At present, Hong Kong has TSP arrangements with :

  1. 23 countries, pursuant to the Council of Europe Convention on the TSP, which was extended to Hong Kong by the UK; and

  2. Thailand, pursuant to the UK-Thailand Agreement on the Transfer of Offenders and on Co-operation in the Enforcement of Penal Sentences, which was extended to Hong Kong by the UK.

These TSP arrangements are given effect in the UK by the UK Repatriation of Prisoners Act 1984 ("the Act"). The Act was extended to Hong Kong, with modifications, by the Repatriation of Prisoners (Overseas Territories) Order 1986 ("the Order") and the Repatriation of Prisoners (Overseas Territories) (Amendment) Order 1987.

3. The Act makes provision for facilitating the transfer of sentenced persons. Both the receiving and sending jurisdictions as well as the sentenced person must consent to the transfers, and the conduct in respect of which the sentenced person is imprisoned must be criminal in both jurisdictions.

4. The Act will cease to have effect in Hong Kong as from 1 July 1997 and hence the need for a localised Bill.

Maritime Conventions

The localised Bill will provide for standardisation of rules governing collision, salvage and assistance at sea.

2. The UK has ratified and extended to Hong Kong -

  1. The International Convention for the Unification of Certain Rules of Law with Respect to Collisions between Vessels 1910 ("the 1910 Collision Convention"); and

  2. The International Convention for the Unification of Certain Rules of Law relating to Assistance and Salvage at Sea 1910 ("the 1910 Salvage Convention"), which was replaced by the International Convention on Salvage 1989 ("the 1989 Salvage Convention").

3. China is a party to these Conventions. It has been agreed at the JLG that these Conventions will continue to apply to the HKSAR after 30 June 1997. The 1910 Collision Convention sets out the rules in relation to collision between two or more vessels and provides for the apportionment of liability for damages, the jurisdiction in cases of loss of life or personal injury, the limitation periods for bringing legal proceedings, etc. The 1989 Salvage Convention sets out uniform international rules regarding salvage operations. It takes into account the concern for the protection of the environment which has not been addressed in the 1910 Salvage Convention.

4. In order to implement the international rights and obligations arising under the 1910 Collision Convention and 1910 Salvage Convention, the UK passed the Maritime Conventions Act 1911 ("the Act") which by virtue of section 9(1) extend to Hong Kong.

5. The Act provides for -

  1. apportionment of liability for damages;

  2. jurisdiction in cases of loss of life or personal injury;

  3. the limitation periods within which legal proceedings may be brought; and

  4. uniform rules regarding salvage operation and assistance at sea.

6. The Act will cease to apply to Hong Kong as from 1 July 1997 and hence the need for a localised Bill. The Bill will comprise localised provisions for the part of the Act which deals with the 1910 Collision Convention and include new provisions to give effect to the 1989 Salvage Convention.

Outer Space

The localised Bill will prohibit unlicensed activities relating to outer space by residents of Hong Kong or companies incorporated in Hong Kong.

2. The UK is a party to the following four outer space treaties -

  1. Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Outer Celestial Bodies done at London, Moscow and Washington on 27 January 1967, ("the Outer Space Treaty");

  2. Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space done at London, Moscow and Washington on 22 April 1968, ("the Return Agreement");

  3. Convention on International Liability for Damage caused by Space Objects done at London, Moscow and Washington on 29 March 1972 ("the Liability Convention"); and

  4. Convention on the Registration of Objects Launched into Outer Space done at New York on 14 January 1975, ("the Registration Convention").

and has extended them to Hong Kong. China is also a party to these treaties. It has been agreed that these treaties will continue to apply to the HKSAR after 30 June 1997.

3. The UK Outer Space Act 1986 ("The Act") gives effect to these four treaties. The Act was extended to Hong Kong through the Outer Space Act 1986 (Hong Kong) Order 1990.

4. The main provisions of the Act are intended to -

  1. prohibit unlicensed activities in or relating to outer space by British nationals or by companies incorporated in the UK or Hong Kong;

  2. provide for the grant of licences for certain activities;

  3. set out the requirement for maintaining a register of space objects; and

  4. oblige persons who engage in space activities to indemnify the Government against claims arising out of the activity.

5. The Act will cease to have effect in Hong Kong as from 1 July 1997 and hence the need for a localised Bill.

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Last Updated on 13 August 1998