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香港法院审理案件中的法律论证过程 ——以United Phosphorus LTD v. China Merchants Shipping & Enterprises Co Ltd 上诉审为例/陈汉瑛(12)
(The page nos. of the citations from Spiliada which Hunter JA gave were from the page nos. of the report of the case in the Weekly Law Reports. I have changed the page nos. to the report of the case in the Appeal Cases for consistency and ease of reference.)
The criticism of the judge
The criticism made of Stone J by Mr Charles Sussex for the Defendant focuses on the three stages identified in "The Adhiguna Meranti". It is said that his conclusion was that the Defendant had failed to discharge the burden imposed on it at stage I of the analysis. That conclusion is said to be wrong. The effect of that conclusion was that the judge did not go on
(a) to consider whether the Plaintiff would be subject to any personal or juridical disadvantages in the alternative forum for which the Defendant contended (stage II), and
(b) to balance the desirability of the case proceeding in the more appropriate forum against the disadvantages to the Plaintiff of the case being tried in that forum (stage III).
Since the judge did not address those issues, the Court of Appeal should now do so, thereby carrying out the task which the judge (understandably in the light of his decision at stage I of the analysis) did not. Mr Sussex contended that such juridical disadvantages as the Plaintiff would be subject to if the case proceeded in the Guangzhou Maritime Court were minimal, and it could not be said that substantial justice would not be done there.


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