Addressing Impediments or Hardship to Contract Performance: A Comparative Study of the Common Law in Hong Kong and Chinese Law

Project: Research

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Researcher(s)

Description

This project deals with the problem that the performance of a wide range of contracts is affected by unexpected events such as the regional/global financial crisis, the US-China economic decoupling, the COVID-19 pandemic, through a comparative study of the common law of Hong Kong and the contract law of Mainland China. Such events are governed by disparate doctrines of frustration, force majeure and change of circumstances under the two legal systems, which are further informed by different cultures, policies and customs in their application in practice. In particular, the lack of a clear analysis into the true status and jurisprudential basis of Chinese judicial decisions precludes a full understanding of the Chinese law. The gap in the understanding between the two systems is large and a program of research is required to determine areas in which they may benefit from learning from each other and even integrate workable solutions. The legal differences also present a significant barrier to cross-border trade and commerce and cause confusion to contracting parties, lawyers and policy-makers from both systems who are left without credible guidance, with increases in their costs in obtaining information about and complying with the other’s law. As a result, cross-border business tends to become risky and unpredictable and threatens the bilateral economic ties vital to each jurisdiction’s economic future. This project seeks to respond to this urgent need by filling the gap and providing such guidance. It will identify and compare differing judicial solutions under the two systems to the problem of unexpected events in contract law, assess the advantages and disadvantages of such solutions comparatively, provide reform suggestions to law and policy-makers from both sides, and promote best contract negotiation and drafting practice to counter events such as the COVID-19 pandemic. The findings from this research will facilitate mutual understanding and economic competitiveness, strengthen sustainable economic ties, inform legal decision-making in both Hong Kong and Mainland China, enhance each system’s capacity to engage with the other, and provide common lawyers, businesses and policy-makers in Hong Kong and elsewhere with a definitive and authoritative guide. The research will be novel in its comparative and practical dimensions, timely in the global context and unique in the background of the PI and Co-Is. 

Detail(s)

Project number9043265
Grant typeGRF
StatusNot started
Effective start/end date1/01/22 → …