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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(20)
(ii) The governing law. Two assumptions can be made in favour of the Defendant: first, that the acts which constituted the torts occurred for the most part on the mainland; secondly, that the double actionability rule applies, i.e. that the acts complained of are actionable in Hong Kong only if the acts complained of would be actionable (a) as a tort in Hong Kong and (b) according to the law of the mainland. The burden being on the Defendant at this stage, it is noteworthy that there is no evidence that the acts complained of would not be actionable according to the laws of the mainland.
(iii) The parties and the witnesses. Neither of the parties carry on business on the mainland, although the Defendant has agents on the mainland. Indeed, as I have said, the Defendant is incorporated and carries on business in Hong Kong. I accept that the principal witnesses in the case are likely to be the employee of the Defendant's agent in Changsha and the employees of the sellers and their agents, all of whom are presumably based in Changsha. But there is still at least a possibility that one or more of the Plaintiff's employees in Bombay may have to give evidence as well as a representative of the Defendant, who is presumably based in Hong Kong.


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