Legal Pluralism, Institutionalism, and Judicial Recognition of Hong Kong-China Cross-Border Insolvency Judgments

Abstract

Legal pluralism and institutionalism are important theoretical underpinnings for the discourses of judicial recognition under dual legal systems that coexist within one sovereign nation such as the case of China and Hong Kong. Institutionalism provides that only formal institutions (eg, constitutions, laws and treaties), unlike informal ones (eg, private contracts, traditions and customs), can facilitate judicial recognition and enforcements for insolvency creditor rights protection. Legal pluralism, however, provides for an alternative to circumventing political sovereignty issues typically associated with the making of treaties for mutual judicial recognition purposes. Under the Chinese politico-legal system, Hong Kong is a Special Administrative Region which is akin to a province; as such, Hong Kong is not qualified to sign a bilateral treaty with China. This article expounds and analyses why instituting and implementing a special arrangement (an alternative to a treaty) can help optimise the mutual enforcement of Hong Kong-China cross-border insolvency judgments and orders.