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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(17)
".... [p]roceedings begun in Hong Kong as of right are not lightly disturbed, a principle epitomised by the burden imposed upon a party making an application for a stay purely on the forum non conveniens basis ..."
he should not be treated, I think, as giving impermissible weight to the Plaintiff's right to sue in Hong Kong. Rather, he should be regarded as simply giving legitimate effect to the particular circumstances in which the Plaintiff's right to sue in Hong Kong had arisen.
The critical question.
With these considerations in mind, I turn to the critical question: was the judge's conclusion that the Defendant had failed to establish that the Guangzhou Maritime Court was clearly or distinctly a more appropriate forum for the trial of the action than the courts of Hong Kong a conclusion which was outside the generous ambit within which reasonable disagreement is possible? I bear in mind that the case is one with transnational ingredients. As Mr Smith said, the case should not be treated as if it was a road traffic accident in Guangzhou. It is a case in which documents which purported to be bills of lading bearing the address in Hong Kong of the company incorporated in Hong Kong which purportedly issued them on the mainland were presented to a bank on the mainland with the ultimate intention of obtaining payment on a letter of credit which had been opened in India by a company incorporated in India in connection with a shipment of cargo from the mainland to India. With that in mind, I turn to the various connecting factors.


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