Common law courts, like those in Hong Kong and Singapore, usually exercise jurisdiction over foreign defendants in particular cases with certain factual connections to the territory. The long-arm service ‘gateways’ in the court rules include contract cases where there is a jurisdiction clause and tort cases where acts took place, or damage was incurred, in the territory. Historically, a claimant has needed the court’s permission to serve proceedings abroad under the gateways. That remains the position in Hong Kong.

Some jurisdictions, particularly England and in the Caribbean, regularly update their gateways to include ever more categories of case and keep up with economic and technical developments.

Whether a case falls within the gateways invoked often leads to costly and ultimately pointless litigation, where deserving cases can be turned away on technical grounds.

In 2018, some Australian states modernised their rules so claimants no longer need permisison to serve proceedings abroad if the case falls within a gateway, and the court can give permission to serve abroad even if the case falls in no gateway.

In a recent overhaul of its court procedure, Singapore has taken the radical step of abolishing the long-arm ‘gateways’ altogether. Now, a Singapore Writ can be served abroad, without permission, if either (a) the court has jurisdiction eg under existing specific statutes with extraterratorial reach over events or persons abroad, or (b) Singapore is the ‘appropriate’ jurisdiction to hear the dispute. Limb (b) breaks with the traditional position in common law jurisdictions where the courts do not exerise jurisdiction simply on that basis where the defendant is not otherwise amenable to the jurisdiction, Four Seasons v Brownlie [2017] UKSC 80.

Hong Kong, as an aspiring legal hub for the region, would do well to consider adopting Singapore’s fresh new approach.

Edward Alder authors the commentary to O.11 in Hong Kong Civil Procedure 2022. He has appeared in many recent jurisdictional cases, including The Milano Bridge [2022] 1 Lloyd’s Rep 441, [2022] HKCA 157, Haller AG v China Meheco [2022] HKCFI 652 and Securities and Futures Commission v Subotic [2021] 3 HKLRD 777.