Hong Kong: State Immunity in Hong Kong - FAQ

Last Updated: 13 September 2011
Article by John M. Hickin and Susanne J. Reynolds

Originally published 9 September 2011

Keywords: Hong Kong, State immunity, Foreign State immunity, Crown immunity, international arbitration,

Following our recent reports on the Congo Case, this update offers some short answers to common questions regarding the practical effect on the position of State immunity in Hong Kong. Click on a linked question below to view our comments.

  1. Can a contract with a foreign State as the counterparty be enforced in Hong Kong?
  2. A contract includes a clause which provides that the foreign State agrees to waive sovereign immunity. Will this provide a basis upon which to enforce the contract in Hong Kong?
  3. How does the Congo Case effect an arbitral award made against a foreign State?
  4. Does the Central People's Government of the PRC (CPG) enjoy absolute immunity in Hong Kong?
  5. What is Crown immunity and how does it differ from foreign State immunity?
  6. Can entities such as State Owned Enterprises or State invested entities of the PRC claim Crown immunity in Hong Kong and if so, in what circumstances?
  7. Can Crown immunity be waived?

Can a contract with a foreign State as the counterparty be enforced in Hong Kong?

As a result of the recent Congo Case, it is now clear that foreign States enjoy absolute immunity from enforcement and jurisdiction in Hong Kong. Foreign States are therefore immune from the jurisdiction of the Hong Kong Courts and a contract with a foreign State cannot be enforced against the foreign State, unless the foreign State agrees to waive immunity (see below).

A contract includes a clause which provides that the foreign State agrees to waive sovereign immunity. Will this provide a basis upon which to enforce the contract in Hong Kong?

The majority of the Court of Final Appeal held that waiver of immunity by a foreign State must be unequivocal and suggested that it must be made to the Court. Accordingly, even where there is a well drafted waiver clause in the contract, the Hong Kong Courts will not grant jurisdiction over the foreign State unless, at the time of appearing before the Hong Kong Court, the foreign State expressly waives immunity from jurisdiction of the Hong Kong Courts.

How does the Congo Case effect an arbitral award made against a foreign State?

As a result of the Congo Case, an arbitral award against a foreign State cannot be enforced in Hong Kong unless the foreign State waives immunity (see above). An agreement to arbitrate will not in itself constitute a waiver of immunity.

Does the Central People's Government of the PRC (CPG) enjoy absolute immunity in Hong Kong?

The PRC government is not a "foreign" State in Hong Kong, since Hong Kong and the PRC are "one country". The Congo Case was concerned with proceedings against the Democratic Republic of Congo (a foreign State). Although foreign State immunity does not apply to the PRC in Hong Kong, a recent decision of the Hong Kong Court of First Instance held that post handover, the CPG enjoys Crown immunity in Hong Kong: Intraline Resources SDN BHD v The Owners of the Ship or Vessel "Hua Tian Long" [2010] 3 HKLRD 67.

What is Crown Immunity and how is it different to foreign State Immunity?

Foreign State immunity derives from the notion of equality of States. It is based on the premise that no State can interfere in the affairs of another foreign State by claiming jurisdiction over that State. In contrast, Crown immunity is a judicial doctrine which stems from the inequality of the ruling sovereign and the ruled and the ancient English principle that the monarch can do no wrong.

Although they stem from different concepts, the practical effect of foreign State immunity and Crown immunity in Hong Kong is the same: they confer on foreign States and the CPG respectively immunity from suit and execution in the Hong Kong courts.

Can entities such as State Owned Enterprises or State invested entities of the CPG claim Crown immunity in Hong Kong and if so, in what circumstances?

In Hua Tian Long, the Court noted that the common law had extended the meaning of the Crown from the sovereign to all bodies and persons acting as servants or agents of the Crown. When determining whether an entity is part of the Crown for the purposes of asserting immunity, the Court held the material consideration is the control the CPG exercises over the entity. If the entity is controlled by the CPG then it is likely to enjoy Crown immunity. In applying the "control test", the Court will have regard to whether the entity is able to exercise independent powers of its own. It may be that an entity is able to act independently with respect to some of its purposes, but not others. In these circumstances, it is possible that the entity may only claim Crown immunity for particular purposes. This is a complex issue which will require an assessment of the facts in each case.

Can Crown immunity be waived?

Yes, the Crown may waive immunity. In fact, the Court held in Hua Tian Long that the owner of the ship, an entity of the CPG, was entitled to claim Crown immunity but its conduct amounted to a waiver of such immunity and it had therefore submitted to the jurisidction of the Hong Kong courts. The same principles apply to waiver of Crown immunity as those which govern waiver of foreign State immunity discussed above.

Because the analysis of many of these issues, particularly with regard to issues of waiver and the reach of Crown immunity, will necessarily depend upon the particular facts, these FAQs are not intended to provide any specific advice or identify a particular solution. Rather, the purpose of these FAQs is to raise awareness of the legal problems that State immunity in Hong Kong creates.

For more information about the Congo Case, please click on this link: http://www.mayerbrown.com/publications/article.asp?id=11469&nid=6.

Learn more about our Hong Kong office, International Arbitration and Litigation & Dispute Resolution practices.

Visit us at www.mayerbrownjsm.com

Mayer Brown is a global legal services organization comprising legal practices that are separate entities (the Mayer Brown Practices). The Mayer Brown Practices are: Mayer Brown LLP, a limited liability partnership established in the United States; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales; Mayer Brown JSM, a Hong Kong partnership, and its associated entities in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. "Mayer Brown" and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions.

© Copyright 2011. The Mayer Brown Practices. All rights reserved.

This article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein. Please also read the JSM legal publications Disclaimer.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions