Law left in limbo as lawyers argue

PUBLISHED : Sunday, 14 July, 1996, 12:00am
UPDATED : Sunday, 14 July, 1996, 12:00am

IT was introduced two years ago as 'an ordinance for the 21st century'. The problem is whether we will ever get it.

On November 21, the Government announced a full-scale review of existing companies and securities legislation, to be conducted by former Securities and Futures Commission deputy chairman Ermanno Pascutto.

By the Government's own admission, the Companies Ordinance is 'one of the largest and most complex pieces of legislation in Hong Kong'. Reviewing it promised to be one of the largest and most complex jobs around.

With this in mind, it is fair to say no one particularly jumped at the chance of conducting the review.

In fact, Mr Pascutto was the Government's fourth choice, after the position was turned down by former Deacons partner Stewart Smith, Anthony Rogers QC, and ex-Johnson Stokes & Masters lawyer Vince Bramhall.

Mr Pascutto himself admitted 'it was not exactly the most sought-after assignment in the world'.

Unpopular though the job may have been, it needed doing. The existing legislation has its roots in the 19th century. Like many local laws, they were adopted from Britain's legislative rolls and chopped and changed piecemeal to fit with Hong Kong's quirks and peculiarities.

The net result - although functional - is far from being tailored specifically for the territory.

The depth of the problem is demonstrated by the last review of the ordinance conducted in 1984.

That review was based on a 1973 report by the Companies Law Revision Committee and when completed brought the ordinance up-to-date not with the 1984 situation or even the 1973 situation, but with the UK Companies Act of 1948.

This time around it is going to be different. The plan is to provide the territory with a Companies Ordinance designed to meet the territory's needs.

It is hoped the new legislation will be more simple, more streamlined, more effective, more user-friendly and more efficient.

It will be Hong Kong legislation born and bred.

All that was 18 months ago. Today, the 'ordinance for the 21st century' is being hindered by a problem that has been around since time in memorial - people not getting on.

Mr Pascutto and Professor Cally Jordan, a key member of his team, do not see eye to eye.

According to sources, that is putting it mildly. Ms Jordan is to return to private practice at the end of this month and may not carry on her valuable work with the review if contractual problems with Mr Pascutto cannot be resolved.

The breakdown of interpersonal relationships is a fact of life.

When such things happen within the home it is a private matter.

But this breakdown is coming at the expense of a multi-million-dollar government contract and could, if it continues, call into question the quality of the review itself.

Who loses out? Hong Kong does. The territory desperately needs a 21st-century ordinance and time spent squabbling is time that could be spent on the review.

The Government and Mr Pascutto want Ms Jordan to stay on.

Ms Jordan herself has declined to comment, but sources close to the review indicated she will stay on if she can separate her contractual obligations from Mr Pascutto.

However, the same sources have suggested that Mr Pascutto is reluctant to allow this as he fears Ms Jordan might attempt to take the entire $14 million contract with her to her new firm. This, patently, would reflect rather badly on Mr Pascutto.

What a mess. A bunch of lawyers arguing with a bunch of lawyers while an opportunity to conduct a professional and historic review waits in the background.

In its present form, the wrangle appears virtually insoluble.

But as in any marriage, there comes a time when relations can no longer be saved and both partners are better-off apart.

Maybe that time has come.