Legislating for Third Party Contractual Rights: Two Potentially Problematic Provisions

Abstract

The Hong Kong Legislative Council is currently considering a proposed Bill on the reform of the privity doctrine in Hong Kong contract law. Two notable aspects of the proposed reform are the inclusion of provisions dealing with arbitration agreements and exclusive jurisdiction agreements. This paper, based on a wider work in progress, will discuss the potential problems resulting from the inclusion of these respective provisions in any legislative reform and question whether they are best left out: the former, in light of a recent English Court of Appeal decision in relation to such a provision in the UK’s Contracts (Rights of Third Parties) Act 1999, and the latter, in light of various expressed reservations which have kept such a provision out of other common law legislative reforms to the privity doctrine.