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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(14)
".... on the evidence before me I decline, in the exercise of my discretion, to hold that the Guangzhou Maritime Court is 'clearly or distinctly more appropriate' than the Hong Kong forum for the trial of the action, or that in the circumstances it would be just for such a stay to be ordered."
That is the language of a decision at stage I of the analysis and is the basis on which I go along with what is common ground between counsel. What made me initially hesitate before I did so were two things:
(i) The words which the judge added at the end of the passage - that the judge declined to hold that "in the circumstances it would be just for such a stay to be ordered" - suggested that the judge had been engaged in an exercise other than simply the analysis at stage I. On balance, though, I think that the judge must have had in mind that a failure by a defendant to discharge the burden at stage I of the analysis will "ordinarily" result in the refusal of the stay, and will "normally" be fatal to its application. The judge was therefore saying that there were no exceptional circumstances which might justify a decision adverse to the Defendant at stage I not being fatal to the application.


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