An Ordinance to provide for facilitating the vesting in The Bank of Tokyo-Mitsubishi, Ltd. of the undertaking of The Bank of Tokyo, Ltd.; and for other related purposes.
[23 February 1996]
(Format changes—E.R. 3 of 2021)
The Mitsubishi Bank, Limited (hereinafter called Mitsubishi Bank) is a company organized under the law of Japan having its registered place of business at Tokyo;
The Bank of Tokyo, Ltd. (hereinafter called Bank of Tokyo) is a company organized under the law of Japan having its registered place of business at Tokyo;
both Mitsubishi Bank and Bank of Tokyo are banks licensed under the Banking Ordinance (Cap. 155) and carrying on the business of banking in Hong Kong and elsewhere;
a merger agreement executed on 19 May 1995 on behalf of Mitsubishi Bank and Bank of Tokyo was approved at the respective shareholders’ meetings of Mitsubishi Bank and Bank of Tokyo both held on 29 June 1995;
the merger agreement has provided for the undertaking of Bank of Tokyo to be succeeded to by Mitsubishi Bank and the name of Mitsubishi Bank to be changed to The Bank of Tokyo-Mitsubishi, Ltd. on the appointed day;
the merger to be effected pursuant to the merger agreement will be required to be registered with the Commercial Registries under the provision of the Law concerning Merger and Conversion of Financial Institutions of Japan and the Commercial Code of Japan;
on the completion of the registration of such merger with the Commercial Registries, Bank of Tokyo will be dissolved under the provisions of the Law concerning Merger and Conversion of Financial Institutions of Japan and the Commercial Code of Japan;
in view of the extent of the contractual and other legal relationships affecting the conduct of the undertaking of Bank of Tokyo, it is expedient to make provision to facilitate such merger insofar as it relates to that part of the undertaking of Bank of Tokyo which is governed by Hong Kong law or the transfer of which is governed by Hong Kong law or which is derived from the Hong Kong business of Bank of Tokyo without interference with the conduct and continuity of the respective businesses of Bank of Tokyo and Mitsubishi Bank in Hong Kong.
(Enacting provision omitted—E.R. 3 of 2021)
This Ordinance may be cited as the Bank of Tokyo-Mitsubishi Ordinance.
In this Ordinance, unless the subject or context otherwise requires—
appointed day (指定日期) means the day on which the merger is to be effected pursuant to the terms of the merger agreement and the name of Mitsubishi Bank changed to The Bank of Tokyo-Mitsubishi, Ltd.; Bank of Tokyo (東京銀行) means The Bank of Tokyo, Ltd.; Bank of Tokyo-Mitsubishi (東京三菱銀行) means The Bank of Tokyo-Mitsubishi, Ltd.; Commercial Registries (商業登記處) means the numerous commercial registries located throughout Japan with whom commercial registrations of the merger pursuant to the merger agreement must be registered by the head office and branch offices of Bank of Tokyo-Mitsubishi in operation as at the appointed day; customer (客戶) means any person having a banking account or other dealing, transaction or arrangement with Bank of Tokyo or, as the case may be, Mitsubishi Bank; existing (現有) means existing, outstanding or in force immediately before the appointed day; liabilities (法律責任) includes duties and obligations of every description (whether present or future, actual or contingent); merger agreement (合併協議) means the merger agreement executed on 19 May 1995 on behalf of Bank of Tokyo and Mitsubishi Bank, and approved by their respective shareholders’ resolutions on 29 June 1995; Mitsubishi Bank (三菱銀行) means The Mitsubishi Bank, Limited which name will be changed to The Bank of Tokyo-Mitsubishi, Ltd. on the appointed day; property (財產) means property and assets of every description and rights of every description (whether present or future, actual or contingent), and includes property held on trust and securities, benefits and powers of every description; security (抵押) includes a mortgage or charge (whether legal or equitable and including any sub-mortgage), debenture, bill of exchange, promissory note, guarantee, lien, pledge (whether actual or constructive), hypothecation, assignment by way of security, indemnity, right of set-off, agreement or undertaking (whether in writing or not) or other means (in each case made, granted, arising or subsisting under any applicable law) of securing payment or discharge of a debt or liability (whether present or future, actual or contingent); undertaking (業務) means the business and all existing property and liabilities of Bank of Tokyo of whatsoever nature; will (遺囑) includes a codicil and any other testamentary writing.Any reference in this Ordinance to property or liabilities of Bank of Tokyo is a reference to property or liabilities to which Bank of Tokyo is for the time being entitled or subject (whether beneficially or in any fiduciary capacity), wherever such property or liabilities are situated or arise and whether or not capable of being transferred or assigned by Bank of Tokyo, and whether Bank of Tokyo is entitled to such property or subject to such liabilities under the law of Hong Kong or under the law of any country or territory outside Hong Kong.
Any body politic or corporate and any other person or persons whose rights are affected by any of the provisions of this Ordinance shall be deemed to be mentioned herein.
Mitsubishi Bank shall give notice in the Gazette of the day expected to be the appointed day save that, in the event that such day proves not to be the appointed day for any reason, Mitsubishi Bank shall give notice in the Gazette to that effect and shall again give notice in the Gazette of the next day expected to be the appointed day or, as the case may be, Bank of Tokyo-Mitsubishi shall give notice in the Gazette of the day which was the appointed day.
On the appointed day that part of the undertaking of Bank of Tokyo which is governed by Hong Kong law or the transfer of which is governed by Hong Kong law or which is derived from the Hong Kong business of Bank of Tokyo shall be deemed for the purpose of Hong Kong law to be transferred to, and vest in, Bank of Tokyo-Mitsubishi to the intent that Bank of Tokyo-Mitsubishi shall succeed to such part of the undertaking of Bank of Tokyo as if in all respects Bank of Tokyo-Mitsubishi were the same person in law as Bank of Tokyo.
Any property deemed to be vested in Bank of Tokyo-Mitsubishi by virtue of this Ordinance which immediately before the appointed day was held by Bank of Tokyo, whether alone or jointly with any other person, as trustee or custodian trustee of any trust deed, settlement, covenant, agreement or will (whether originally so appointed or not, and whether appointed under hand or seal, or by order of any court or otherwise), or as executor of the will, or administrator of the estate, of a deceased person or as judicial trustee appointed by order of any court, or in any other fiduciary capacity, shall, on and from the appointed day, be held by Bank of Tokyo-Mitsubishi alone or, as the case may be, jointly with such other person, in the same capacity upon the trusts, and with and subject to the powers, provisions and liabilities, applicable thereto respectively.
Any existing instrument or order of any court under or by virtue of which any property became vested in Bank of Tokyo in any such fiduciary capacity as is referred to in subsection (1) (including in the case of a will any grant of probate thereof), and any provision in such instrument or order, or any existing contract or arrangement, for the payment to, or retention by, Bank of Tokyo of remuneration for its services in any such fiduciary capacity, shall, on and from the appointed day, be construed and have effect, so far as the context permits, as if for any reference therein to Bank of Tokyo there were substituted a reference to Bank of Tokyo-Mitsubishi.
No testamentary gift shall be adeemed by reason only of the operation of any of the provisions of this Ordinance.
Without prejudice to the generality of any other provision of this Ordinance but subject to any provision of this Ordinance to the contrary effect, the following provisions of this section shall have effect with respect to matters within Hong Kong or subject to the laws of Hong Kong—
All existing contracts, agreements, insurance policies, options, novations, certificates, awards, conveyances, deeds, leases, licences, notices, permits, guarantees, documents granting or comprising any security, bonds, indemnities, mandates, instructions and other instruments and undertakings entered into by, made with, given to or by or addressed to Bank of Tokyo (whether alone or with any other person and whether as principal or agent and whether in writing or not) shall be construed and have effect on and from the appointed day as if—
Bank of Tokyo-Mitsubishi had been a party thereto instead of Bank of Tokyo;
for any reference (however worded and whether express or implied) to Bank of Tokyo there were substituted, as respects anything falling to be done on or after the appointed day, a reference to Bank of Tokyo-Mitsubishi;
any reference (however worded and whether express or implied) to the directors or to any director, officer or employee of Bank of Tokyo were, as respects anything falling to be done on or after the appointed day, a reference to the directors of Bank of Tokyo-Mitsubishi or, as the case may require, to such director, officer or employee of Bank of Tokyo-Mitsubishi as Bank of Tokyo-Mitsubishi may appoint for that purpose or, in default of appointment, to the director, officer or employee of Bank of Tokyo-Mitsubishi who corresponds as nearly as may be to the first-mentioned director, officer or employee:Provided that this paragraph shall not apply to the merger agreement or any agreement expressed to be made pursuant or supplemental thereto.
Paragraph (a)(ii) shall, subject to the provisions of section 16, apply to any statutory provision, to any provision of any existing contract to which Bank of Tokyo was not a party and to any provision of any other existing document (not being a contract or a will) as they apply to a contract to which that paragraph applies:Provided that such paragraph shall not apply to any existing authorization or exemption under any enactment regulating the carrying on of the business of Bank of Tokyo.
Any account between Bank of Tokyo and a customer shall, on the appointed day, be transferred to Bank of Tokyo-Mitsubishi and become an account between Bank of Tokyo-Mitsubishi and such customer subject to the same conditions and incidents as theretofore; and such account shall be deemed for all purposes to be a single continuing account; provided that nothing in this Ordinance shall affect any right of Bank of Tokyo-Mitsubishi or of any customer to vary the conditions or incidents subject to which any account is kept.
Any existing instruction, order, direction, mandate, power of attorney, authority, undertaking or consent (whether in writing or not and whether or not in relation to an account) given to Bank of Tokyo, either alone or jointly with another person, shall apply and have effect, on and from the appointed day, as if given to Bank of Tokyo-Mitsubishi or, as the case may be, to Bank of Tokyo-Mitsubishi jointly with such other person.
Any negotiable instrument or order for payment of money drawn on or given to, or accepted or endorsed by, Bank of Tokyo, or payable at any place of business of Bank of Tokyo, whether so drawn, given, accepted or endorsed before, on or after the appointed day, shall have the same effect on and from the appointed day, as if it had been drawn on, or given to, or accepted or endorsed by Bank of Tokyo-Mitsubishi, or were payable at the same place of business of Bank of Tokyo-Mitsubishi.
The custody of any document or record, goods or other thing held by Bank of Tokyo as bailee shall pass to Bank of Tokyo-Mitsubishi on the appointed day, and the rights and obligations of Bank of Tokyo under any contract of bailment relating to any such document or record, goods or thing shall on that day become rights and obligations of Bank of Tokyo-Mitsubishi.
Any security held immediately before the appointed day by Bank of Tokyo, or by a nominee or agent of or trustee for Bank of Tokyo, as security for the payment or discharge of any liability shall, on and from the appointed day, be held by, or, as the case may require, by that nominee, agent or trustee for, Bank of Tokyo-Mitsubishi, and be available to Bank of Tokyo-Mitsubishi (whether for its own benefit or, as the case may be, for the benefit of any other person) as security for the payment or discharge of that liability;
in relation to any security deemed to be vested in Bank of Tokyo-Mitsubishi in accordance with the provisions of this Ordinance and any liabilities thereby secured, Bank of Tokyo-Mitsubishi shall be entitled to the rights and priorities and be subject to the obligations and incidents to which Bank of Tokyo would have been entitled and subject if it had continued to hold the security;
without prejudice to the generality of subparagraph (ii), in any case where any existing liability subsists between Bank of Tokyo and Mitsubishi Bank in respect of which Bank of Tokyo or Mitsubishi Bank, or a nominee or agent of or trustee for Bank of Tokyo or Mitsubishi Bank holds security, that liability shall, for the purpose of enforcing or realizing that security, be deemed to continue in effect notwithstanding the vesting of the undertaking in Bank of Tokyo-Mitsubishi;
any security referred to in subparagraph (i), (ii) or (iii) and which extends to future advances or liabilities shall, on and from the appointed day, be available to Bank of Tokyo-Mitsubishi (whether for its own benefit or, as the case may be, for the benefit of any other person) as security for the payment or discharge of future advances and liabilities to the same extent and in the same manner in all respects as future advances by, or liabilities to, Bank of Tokyo were secured thereby immediately before that day.
Where by virtue of this Ordinance any right or liability of Bank of Tokyo is deemed to become a right or liability of Bank of Tokyo-Mitsubishi, Bank of Tokyo-Mitsubishi and all other persons shall, on and from the appointed day, have the same rights, powers and remedies (and in particular the same rights and powers as to taking or resisting legal proceedings or making or resisting applications to any authority) for ascertaining, perfecting or enforcing that right or liability as if it had at all times been a right or liability of Bank of Tokyo-Mitsubishi; and any legal proceedings or application to any authority existing or pending immediately before the appointed day by or against Bank of Tokyo may be continued by or against Bank of Tokyo-Mitsubishi.
Any judgment or award obtained by or against Bank of Tokyo and not fully satisfied before the appointed day shall on that day, to the extent to which it is enforceable by or against Bank of Tokyo, become enforceable by or against Bank of Tokyo-Mitsubishi.
Nothing in this Ordinance shall terminate or prejudicially affect the appointment, authority, rights or powers of any receiver or of any receiver and manager appointed by Bank of Tokyo, whether alone or with others, before the appointed day.
Section 6(a) shall apply to a contract for the employment of any person by Bank of Tokyo and employment with Bank of Tokyo and Bank of Tokyo-Mitsubishi under any such contract shall be deemed for all purposes to be a single continuing employment.
No director or auditor of Bank of Tokyo shall by virtue only of this Ordinance become a director or, as the case may be, auditor of Bank of Tokyo-Mitsubishi.
The rules relating to the Bank of Tokyo Hong Kong Local Staff Provident Fund and the gratuity benefits payable by Bank of Tokyo shall, on and from the appointed day, be construed and have effect, so far as the context permits, as if for any reference therein to Bank of Tokyo there were substituted a reference to Bank of Tokyo-Mitsubishi.
No officer or employee of Bank of Tokyo who becomes an officer or employee of Bank of Tokyo-Mitsubishi by virtue of this Ordinance shall by virtue only of this Ordinance be entitled to participate in any provident fund of or gratuity benefits payable by Bank of Tokyo-Mitsubishi, and no existing officer or employee of Mitsubishi Bank shall, by virtue only of this Ordinance, be entitled to participate in the Bank of Tokyo Hong Kong Local Staff Provident Fund or the gratuity benefits payable by Bank of Tokyo.
Any provision contained in any contract prohibiting or having the effect of prohibiting the merger to be implemented by Bank of Tokyo and Mitsubishi Bank under the merger agreement and to which either Bank of Tokyo or, as the case may be, Mitsubishi Bank is a party shall be deemed by this Ordinance to have been waived.
Any provision contained in any contract to the effect that a default shall occur or be deemed to occur as a result of the merger to be implemented by Bank of Tokyo and Mitsubishi Bank under the merger agreement and to which either Bank of Tokyo or, as the case may be, Mitsubishi Bank is a party shall be deemed by this Ordinance to have been waived.
Nothing in this section applies to any contract to which Bank of Tokyo in Hong Kong or Mitsubishi Bank in Hong Kong is not a party.
All books and other documents which would, before the appointed day, have been evidence in respect of any matter for or against Bank of Tokyo shall be admissible in evidence in respect of the same matter for or against Bank of Tokyo-Mitsubishi.
On and from the appointed day Part III of the Evidence Ordinance (Cap. 8) shall apply to the banker’s records of Bank of Tokyo deemed to be vested in Bank of Tokyo-Mitsubishi by virtue of this Ordinance, and to entries made in those records before the appointed day, as if such records were the records of Bank of Tokyo-Mitsubishi.
For the purposes of section 20 of the Evidence Ordinance (Cap. 8), banker’s records which are deemed to have become the banker’s records of Bank of Tokyo-Mitsubishi by virtue of this Ordinance shall be deemed to have been the ordinary banker’s records of Bank of Tokyo-Mitsubishi at the time of the making of any entry therein which purports to have been made before the appointed day, and any such entry shall be deemed to have been made in the usual and ordinary course of business.
The production of a Government Printer’s copy of this Ordinance shall, for all purposes, be conclusive evidence of the deemed vesting of any property and liabilities of Bank of Tokyo in Bank of Tokyo-Mitsubishi in accordance with the provisions of this Ordinance.
Without prejudice to the generality of subsection (1)—
a Government Printer’s copy of this Ordinance, together with such evidence of publication of notice of the appointed day, shall, in relation to any registered securities transferred to, and vested in, Bank of Tokyo-Mitsubishi by virtue of this Ordinance, operate for all purposes as a duly executed instrument of transfer in respect of the transfer of such registered securities from Bank of Tokyo to Bank of Tokyo-Mitsubishi;
any deed or other document made or executed on or after the appointed day, whereby Bank of Tokyo-Mitsubishi or Bank of Tokyo, whether alone or jointly with any other person, conveys or transfers, or purports to convey or transfer, to any person (whether for consideration or not), or applies to be registered as the holder or proprietor of, any property held by Bank of Tokyo immediately before the appointed day, whether alone or jointly with any other person, shall be sufficient evidence that the interest of Bank of Tokyo in that property is deemed to be vested in Bank of Tokyo-Mitsubishi under this Ordinance;
where there is any other transaction or purported transaction by Bank of Tokyo-Mitsubishi or Bank of Tokyo on or after the appointed day in connection with, or in relation to, any property or liabilities which are property or liabilities of Bank of Tokyo immediately before that day, it shall be deemed in favour of any other party to the transaction, or any person claiming through or under him, that Bank of Tokyo-Mitsubishi has full power and authority for that transaction as if the property or liabilities were deemed to be vested in it under this Ordinance;
a joint certificate given by or on behalf of Bank of Tokyo and Mitsubishi Bank before the appointed day, or a certificate given by or on behalf of Bank of Tokyo-Mitsubishi on or after the appointed day, that any property or liabilities specified in the certificate (which property or liabilities immediately before the appointed day are property or liabilities of Bank of Tokyo) is at the date so specified deemed to be vested in Bank of Tokyo-Mitsubishi under this Ordinance, shall be conclusive evidence for all purposes of the fact so certified;
nothing in paragraphs (c) and (d) affects the liability of Bank of Tokyo and Mitsubishi Bank to the other of them in respect of anything done, or purporting to have been done, by either of them in connection with, or in relation to, any property or liabilities; and
in this section—
Where the transfer and vesting of any property forming part of the undertaking of Bank of Tokyo is governed otherwise than by the law of Hong Kong, Bank of Tokyo shall, if the Bank of Tokyo-Mitsubishi so requires, so soon as is practicable after the appointed day, take all necessary steps for the purpose of securing the effective transfer or vesting thereof to or in Bank of Tokyo-Mitsubishi and, pending such transfer or vesting, shall hold such property in trust for the Bank of Tokyo-Mitsubishi.
The deemed vesting in Bank of Tokyo-Mitsubishi of an interest in land by virtue of this Ordinance shall not—
(Repealed 16 of 2004 s. 16)
constitute an assignment, transfer, devolution, parting with possession, dealing with or other disposition of that interest for the purposes of any provision contained in any instrument concerning that interest; or
give rise to any forfeiture; or
invalidate or discharge any contract or security; or
operate so as to merge any leasehold interest in the reversion expectant on it.
To enable Bank of Tokyo-Mitsubishi to complete a title, if thought fit, to any property transferred to it and vested in it by virtue of this Ordinance by notice of title, deed, instrument or otherwise, or to deduce title, this Ordinance shall be deemed to be, and may be used as, an assignment or assignation, conveyance, transfer or, as the case may be, general disposition of such property in favour of Bank of Tokyo-Mitsubishi.
Nothing in this Ordinance shall exempt Mitsubishi Bank or Bank of Tokyo or any other subsidiary of Mitsubishi Bank or Bank of Tokyo from the provisions of any enactment regulating the carrying on of the business of any of them.
Nothing in this Ordinance shall prejudice the powers of Bank of Tokyo-Mitsubishi to alter its memorandum and articles of association or to dispose of, or deal with, its property, security or liabilities or to carry on or discontinue any part of its business; and nothing in this Ordinance shall prejudice the powers of Bank of Tokyo to dispose of, or deal with, its property, security or liabilities before the appointed day.
Nothing in this Ordinance shall affect or be deemed to affect the rights of the Central Authorities or the Government of the Hong Kong Special Administrative Region under the Basic Law and other laws, or the rights of any body politic or corporate or of any other persons except such as are mentioned in this Ordinance and those claiming by, from or under them.
(Amended 60 of 1999 s. 3)