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Articles for the category "Jurisdiction and Procedure"

"New Zealand Conflict of Laws – A Bird’s Eye View"

FM Auburn and PRH Webb, 1977

In this section of an overview of New Zealand Conflict of Laws, the impact of the Accident Compensation Scheme on transnational tort litigation is considered. The authors discuss the interpretation and application of the double actionability rule for tort within the context of the bar on proceedings for damages in terms of the Accident Compensation Act 1972, with specific reference to the problem of foreigners’ loss of earnings.

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"New Zealand Conflict of Laws – A Bird’s Eye View"

FM Auburn and PRH Webb, 1977

In an overview of New Zealand Conflict of Laws, brief reference is made to proof of foreign law and witnesses qualified to give expert evidence on foreign law.

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"Nullity and Divorce: Recognition in New Zealand of English Decrees and Recognition in England of New Zealand Decrees"

PRH Webb, 1966

In this article hypothetical fact scenarios are used to illustrate: (1) the application of the New Zealand “codified” regime regarding the recognition of foreign divorce, dissolution and nullity decrees (Matrimonial Proceedings Act 1963, s 82) to the recognition of English decrees by New Zealand courts; and (2) the recognition of New Zealand decrees by English courts according to the non-statutory English regime. The author submits that the New Zealand codification could be a useful source of reference for possible law reform in this area of English law.

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"Nullity of Marriage and the Legitimacy of Children"

A Hiller, 1963

The author discusses, against the background of a historical and comparative survey of Roman, English, Australian and French law (as well as brief references to a number of other Continental systems, Mexico and Louisiana) the introduction of the putative marriage doctrine for children of void marriages into New Zealand law through the Matrimonial Proceedings Bill 1963 cl 8. While welcoming the creation of a presumption of legitimacy in favour of these children, the author is critical of the wide scope of the Bill as a result of the rejection of the requirement of a New Zealand domicile in respect of either of the parents.

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"New Zealand"

Laurette Barnard, 1995

This Chapter covers the New Zealand principles and rules on declining jurisdiction.

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"Arresting the Right Ship: Procedural Theory, the In Personam Link and Conflict of Laws"

Paul Myburgh, 2005

This chapter analyses the requirement of an in personam link for in rem admiralty jurisdiction.

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"Service Out of the New Zealand Jurisdiction Without Leave: The Old Order Changeth"

PRH Webb, 1980

This chapter analyses the New Zealand rules on service out of jurisdiction without leave, in the context of the proposed new Code of Civil Procedure.

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Conflict of Laws: Jurisdiction and Foreign Judgments

David Goddard, 2009

This chapter in The Laws of NZ covers personal jurisdiction, limits on jurisdiction, anti-suit injunctions, enforcement and recognition of foreign judgments, and the concepts of domicile and residence.

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"Forum Conveniens – Basis of Jurisdiction in the Commonwealth"

BD Inglis, 1964

The author explores the Anglo-Common Law distinction between forum conveniens, as a prerequisite to assuming jurisdiction, and forum non conveniens, as a defence plea. An analysis of relevant case law illustrates that, in both forum conveniens and forum non conveniens scenarios, the same factors are considered and therefore forum conveniens constitutes the true basis of jurisdiction.

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"Voth in the Family Court: Forum Conveniens in Property and Custody Litigation"

PE Nygh, 1993

The author examines the effect of Voth v Manildra Flower Mills Pty Ltd (1990) 171 CLR 538 on international litigation in the Family Court of Australia. One of the cases discussed is the Trans-Tasman litigation in Gilmore, where proceedings were commenced in Australia and New Zealand. The article focuses on the consequences of disparate forum conveniens/forum non conveniens doctrines, coupled with different matrimonial property regimes, in Australia and New Zealand.

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"After The Spiliada – Forum Non Conveniens in New Zealand and Australia"

Scott Gallacher, 1996

This article analyses the disparate development of forum non conveniens in New Zealand and Australia. The author discusses potential differences in result, depending on whether the "more appropriate forum" test, adopted in New Zealand, or the "clearly inappropriate forum" test, adopted in Australia, is applied.

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"Annulment of Foreign Marriages and Recognition of Foreign Divorces"

BD Inglis, 1955

The author highlights anomalies that may ensue in regard to nullity suits if s 10B of the Divorce and Matrimonial Causes Act 1928 is regarded as an exhaustive code that excludes the common law, especially in regard to marriages where the parties were domiciled overseas at the time of marriage. In regard to s 12A, the author expresses serious concerns in regard to the recognition of a foreign divorce decree, based on the “deemed” domicile of the wife, which may be acquired after a very short period of residence.

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"Asbestos, Australia and ACC"

Elsabe Schoeman and Rosemary Tobin, 2005

This contribution examines the implications of the New Zealand Accident Compensation Scheme for asbestos-related trans-Tasman disputes. The authors focus on the significance of establishing the place of the tort in these cases of negligent omission (failure to warn) in order to determine the lex loci delicti commissi. Jurisdictional issues, such as forum non conveniens, are also considered briefly.

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"Birch v Birch: Conflicts of Laws Principles"

Simon Porter, 2002

This is an analysis of Birch v Birch [2001] 3 NZLR 413; [2001] NZFLR 563, which concerned the division of the proceeds of a (formerly) foreign immovable asset in terms of the Matrimonial Property Act 1976 and more specifically the dates at which to classify, value and establish jurisdiction over such property. Although the Family Court and the High Court reached the same result, the author does not find the different approaches and reasoning adopted by the different judges entirely convincing.

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"Case Comment: Musashi Pty Ltd v Moore"

Gordon Anderson, 2002

This brief comment on Musashi Pty Ltd v Moore, Employment Court, 9 October 2001 (AC 43A/01) Judge Colgan, focuses on the undesirability of allowing choice of a foreign proper law, as well as a foreign forum, in an employment contract where the work is to be performed in New Zealand. The author proposes legislative intervention to remedy the situation.

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"Conflict of Laws"

RJ Paterson, 1992

In an overview of developments in Conflict of Laws (1990-1992), the author draws attention to SHC v O’Brien (1991) 3 PRNZ 1, which makes reference to requirements for evidence by expert witnesses on foreign law, as well as evidence regarding the status of the Restatement of the Law (Second): Conflict of Laws (American Law Institute, 1969-1977).

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"Conflict of Laws"

RJ Paterson, 1992

The author reviews significant Conflict of Laws cases from 1990 and 1992. The review focuses on the existence of jurisdiction, submission to jurisdiction and subject matter jurisdiction, as well as the relevance and application of forum non conveniens with reference to protest to jurisdiction, jurisdiction clauses, lis alibi pendens, service within New Zealand, and summary judgment proceedings, as well as family law proceedings and international child abduction cases. The author also covers the enforcement of foreign judgments at common law, as well as by statute.

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"Conflict of Laws"

RJ Paterson, 1989

The author reviews significant Conflict of Laws cases from 1988 and 1989. The review focuses on the reception of the doctrine of forum non conveniens into New Zealand law and explores the significance and implications of this doctrine within the context of the existence and exercise of jurisdiction in commercial, as well as matrimonial and international child abduction cases.

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"Conflict of Laws"

Paul Roth, 2000

This overview of recent case law deals with the determination of the proper law of an employment contract, as well the jurisdiction of the Employment Court/Employment Relations Authority and the power to apply foreign law within the relevant statutory context. The author focuses on wrongful dismissal (or associated breach of contract) claims and breach of contract (not associated with a dismissal).

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"Jurisdiction in Cyberspace: The When and Where of On-line Contracts"

Justin Hogan-Doran, 2003

This article examines when and where on-line contracts are made in an attempt to define the place of contracting as one of the bases of jurisdiction in a number of Common Law systems, including New Zealand. Within this context the author considers the continued application of the postal acceptance rule to on-line contracts with reference to allocation of risk. The author argues for a conflict of laws meaning to be given to where a contract is made. In regard to jurisdictional bases, forum conveniens should be adopted as a basis of jurisdiction, instead of merely controlling the exercise of jurisdiction.

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"Recognition of Foreign Adoptions"

BD Inglis, 1958

With reference to Bairstow v Queensland Industries Pty Ltd (1955) St R Qd 335, the author discusses problems in regard to fatal accident claims on behalf of adopted children where the relevant foreign adoption statute (in the country where the child was domiciled at the time of adoption) does not confer the status of legitimacy upon an adopted child. The focus is on English Adoption Acts within the context of a fatal accident claim in Australia (Queensland).

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"Jurisdiction, the Doctrine of Forum Conveniens, and Choice of Law in Conflict of Laws"

BD Inglis, 1965

With reference to the English law of jurisdiction, the author draws a clear distinction between forum conveniens as a prerequisite for leave to serve abroad (and the establishment of jurisdiction) and forum conveniens as a motion to strike out or stay an action after the defendant has been served within the jurisdiction, the latter having developed within the context of abuse of process proceedings. The author also explores the relationship between jurisdiction and choice of law, as well as the onus of proof in forum conveniens cases.

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"Jurisdictional Borders"

Nicky Richardson, 2004

This is a brief account of M v B (unreported) 26 February 2004. It focuses on the considerations relevant to an application for a stay of custody proceedings in New Zealand, where parallel custody proceedings had been brought in Australia.

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"International Litigation and the Reworking of the Conflict of Laws"

Campbell McLachlan, 2004

This article focuses on the growth in international commercial litigation in the English courts over a period of 25 years and the emphasis this has placed on the process of litigation. The author examines the impact of this on choice of law and the broader discipline of private international law.

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"Judicial Attitudes to Family Property"

Michael Hardie Boys, 1995

In a general discussion of case law dealing with the Matrimonial Property Act 1976, reference is made to the problem of foreign immovable property and section 7(1) of the Act. Considering the disparate judgments in this area of the law, the author concludes that the matter may require further attention.

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"Jurisdiction and Choice of Law in Tort"

Craig Brown, 1976

The author examines the confusion caused by the double-limbed tort conflict rule (Phillips v Eyre (1870) LR 6 QB 1) in regard to jurisdiction and choice of law, as well as the significance of the "proper law of the tort" exception (Boys v Chaplin [1968] 2 QB 1). While emphasising the distinction between jurisdiction and choice of law, the author points to the interaction between jurisdiction and choice of law in order to find the appropriate forum as well as the appropriate lex causae for cross-border tort disputes. The jurisdictional doctrine of forum conveniens (where leave to serve abroad is required) and the "proper law of the tort" for choice of law purposes may provide the required degree of flexibility in tort choice of law.

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"Jurisdiction Clauses"

AA Tarr, 1980

In this note on Carvalho v Hull Blyth (Angola) Ltd [1979] 3 All ER 280, the author discusses the factors relevant to a discretionary stay in the case of an exclusive jurisdiction clause. The author also explores the significance of an express forum selection with respect to the establishment of the proper law of a contract in the absence of an express choice of law.

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"Jurisdiction Clauses"

AA Tarr, 1981

In this note on Carvalho v Hull Blyth (Angola) Ltd [1979] 3 All ER 280, the author discusses the factors relevant to a discretionary stay in the case of an exclusive jurisdiction clause. The author also explores the significance of an express forum selection with respect to the establishment of the proper law of a contract in the absence of an express choice of law.

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"Jurisdiction in Nullity"

A Hiller, 1963

These articles present an in-depth survey of English common law, statutory law and case law in regard to jurisdiction in nullity actions. In a brief note annexed to the articles, the author pleads for a restrictive interpretation of the relevant New Zealand statutory provisions so that the English common law rules pertaining to jurisdiction in nullity suits would still apply.

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"Jurisdiction in Trans-National Cases"

Paul Myburgh and Elsabe Schoeman, 2004

This article presents an analysis of the interpretation and application of the good arguable case on the merits test within the context of RR 219 and R 220 by New Zealand courts. Considering the differences between the New Zealand and English statutory jurisdictional dispensations, the authors criticise the New Zealand courts’ adoption of English authority in this context. The article also questions the wisdom of the separate leave regimes in RR 219 (without leave) and 220 (with leave) and calls for a redrafting of the rules.

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"Jurisdiction Shopping – NZLS Seeks Urgent Resolution"

Anonymous, 1993

In response to Gilmore v Gilmore [1993] NZFLR 561; (1993) 10 FRNZ 469, this brief note highlights the dilemma posed by different interpretations of forum non conveniens in New Zealand and Australia with regard to discretionary jurisdictional stays.

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"The Hague and the Ditch: The Trans-Tasman Judicial Area and the Choice of Court Convention"

Reid Mortensen, 2009

Following an analysis of the history and current context of the proposed Trans-Tasman regime (within the CER framework), this article explores the comparative value of the Hague Convention on Choice of Court Agreements for Australia and New Zealand. Although the Convention and the proposed Trans-Tasman regime are profoundly different, the author concludes that the adoption of the Convention would provide an opportunity for both countries to increase certainty in international trade and commercial relationships. More specifically, reference to the Convention would address the risk of lis pendens and incompatible judgments in the proposed Trans-Tasman regime.

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"Rule 219: The ‘Good Arguable Case’ Requirement"

Andrew Beck, 2002

The author criticises the adoption of the "good arguable case on the merits" test in respect of R 219 by New Zealand courts, as a result of erroneous reliance on English case law authority. Instead of facilitating the service of proceedings on foreign defendants this test, as well as the fact that the plaintiff carries the burden of proof, completely defeats the policy underlying service abroad without the leave of the court.

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"Injunctions and Overseas Arbitration"

Tim Smith, 2013

Discovery Geo Corporation v STP Energy Pte Ltd [2012] NZHC 3549; [2013] 2 NZLR 122 is noted for the judgment’s discussion of the courts jurisdiction to grant ex parte preliminary orders in arbitration proceedings governed by the Arbitration Act 1996. Notably the judgment makes clear that while the Arbitration Act 1996 empowers courts to grant ex parte orders in support of foreign arbitrations it does not confer jurisdiction over a particular defendant. Jurisdiction over any foreign domiciled defendant must be established according to the High Court Rules. The author notes the potential hurdles such a position creates for a party seeking urgent interim measures in New Zealand against a foreign respondent in support of a foreign arbitration. By way of solution, the author states that applications for interim measures should be made in a timely way to allow for effective service and protest to jurisdiction under the High Court Rules. The author states that in cases of extreme urgency applications are best made in the jurisdiction to whic

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"Reform in the Private International Law of Divorce: A Comparative Study of Two Recent Codes"

BD Inglis, 1958

This article presents an in-depth comparative analysis of two draft codes: the Royal Commission’s Draft Code on Jurisdiction and Recognition (UK, annexed to the Report of the Royal Commission on Marriage and Divorce (1951-1955)) and the Draft Family Code (Israel). The author focuses on the comparative insights that may be gained from the Israeli Draft Code in regard to the concept of domicile, jurisdiction in divorce and nullity suits, as well as the recognition of foreign marriages and divorces.

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"Security for Costs Where Plaintiff Resident Outside New Zealand – The New Zealand Decisions"

PRH Webb, 1975

The author presents an overview of cases in which Rule 577 of the Code of Civil Procedure has been applied within the context of requiring a foreign plaintiff to provide security for costs when proceeding against a New Zealand defendant. Applications of the Rule in relation to, inter alia, actions concerning breach of contract, administration of estates, companies and patents are considered, as well as the extent (amount) of security

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"Service Abroad in Enforcement Proceedings"

Elsabe Schoeman, 2007

In Commerce Commission v Koppers Arch Wood Protection (NZ) Ltd [2007] 2 NZLR 805 jurisdiction in respect of offences committed by foreign defendants in terms of the Commerce Act 1986 was founded on R219(h), which allows for service abroad without leave of the Court. In a discussion of the case, the author comments on the application of the “good arguable case on the merits” test within the context of R219. The author also argues that statutory offences present unique challenges in terms of jurisdiction and enforcement and should rather be dealt with under R220, in terms of which the Court can exercise its discretion to grant leave after having considered all relevant factors.

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"Service Out of the Jurisdiction"

CN Irvine, 1964

In a note on Adastra Aviation Ltd v Airports (NZ) Ltd and Another [1964] NZLR 393, the author criticises the mode of service specified in that case in regard to foreign defendants. The author analyses the meaning of the phrase, “in lieu of service of the writ of summons”, contained in R 51A of the Code of Civil Procedure, with reference to relevant case authority.

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"Service Outside the Jurisdiction"

FM Auburn, 1970

The author analyses RR 48 and 49 of the Code of Civil Procedure (service abroad with leave), with specific reference to claims in tort and contract, against the background of the corresponding English rules. This detailed analysis of the factors relevant to the discretion to grant leave, draws extensively on relevant English case law, as well as case law from other comparable jurisdictions.

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"The Internet – A New World without Frontiers"

Clive Elliot, 1998

With reference to American case law, the author discusses jurisdictional issues relating to internet activity. Consideration is given to the potential implications of the application of New Zealand rules of jurisdiction within this context.

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"The Jurisdictional Limits of Disclosure Orders in Transnational Fraud Litigation"

Campbell McLachlan, 1998

This article presents a detailed and comprehensive analysis of the development of English jurisprudence regarding disclosure orders to trace the proceeds of fraud across international jurisdictional boundaries. Against this background the author critically examines the decisions handed down by the New Zealand Court of Appeal, as well as the Judicial Committee of the Privy Council, in the Winebox inquiry case, pointing out that the real issue was one of conflicting (national) disclosure obligations and not the privilege against self-incrimination. The author sets out five propositions that are crucial to the development of transnational solutions to the problem of conflicting (national) demands re disclosure and secrecy, focusing on the distinction between original and enforcement jurisdiction and the implications thereof, as well as the position of third parties and the location of the relevant information.

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"The Reciprocal Enforcement of Judgments Amendment Act 1992: A Half Step Towards CER"

David Goddard, 1992

This article presents a critical appraisal of the Reciprocal Enforcement of Judgments Amendment Act 1992 within the context of the CER (Closer Economic Relations) initiative between New Zealand and Australia. The author welcomes the extension of recognition (through registration) to foreign non-money judgments, final or interlocutory, but criticises continued adherence to the requirement of reciprocity. The article also addresses other crucial issues, such as the failure to provide for ex parte relief in New Zealand in support of Australian proceedings, interpretation of the "natural justice" defence and differences between New Zealand and Australian extra-territorial jurisdictional bases.

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"Trading with the US – Forum and Choice of Law Clauses"

John Fellas, 1996

In a brief comment on Telemedia Partners Worldwide Ltd v Hamelin Limited SDNY, February 6, 1996, the author provides guidelines for New Zealand practitioners in regard to the drafting of suitable jurisdiction and choice of law clauses in international contracts involving the US.

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"Putting Plaintiffs Through Their Paces"

Andrew Beck, 1998

The author criticises the interpretation of the Court of Appeal decision in Kuwait Asia Bank EC v National Mutual Life Nominees Ltd [1989] 2 NZLR 50 by the Privy Council ([1990] 3 NZLR 513), which has led to the importation of the good arguable case on the merits as part of a two stage inquiry to establish jurisdiction under R 219. Instead, the good arguable case should only be invoked where there is a genuine dispute as to jurisdictional facts.

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"New Zealand Conflict of Laws – A Bird’s Eye View"

FM Auburn and PRH Webb, 1978

In an overview of New Zealand Conflict of Laws, brief reference is made to proof of foreign law and witnesses qualified to give expert evidence on foreign law.

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"New Zealand Conflict of Laws – A Bird’s Eye View"

FM Auburn and PRH Webb, 1978

In this section of an overview of New Zealand Conflict of Laws, the impact of the Accident Compensation Scheme on transnational tort litigation is considered. The authors discuss the interpretation and application of the double actionability rule for tort within the context of the bar on proceedings for damages in terms of the Accident Compensation Act 1972, with specific reference to the problem of foreigners’ loss of earnings.

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"Judgments Extension under CER"

Reid Mortensen, 1999

This article discusses the Closer Economic Relations (CER) Trade Agreement entered into between New Zealand and Australia in 1983 with specific reference to the removal of legal impediments to trade. The author criticises the CER scheme as it does little to improve the efficiency in respect of trans-Tasman judgment extensions. An in-depth analysis follows into alternative mechanisms available for judgment enforcement, with specific reference to the European and Australian models. The author concludes with proposals for the adoption of a “direct jurisdiction” model for the CER scheme.

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"Conflict of Laws: Lovett v Crown Worldwide (NZ) Ltd"

Tony Angelo, 2004

The author notes briefly that, in the light of modern transport facilities and video links, the Court did not regard the location of a witness in Australia as a very significant factor when determining the appropriateness of the forum

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"Conflicts over Conflicts"

Stephen Hunter, 2005

The author examines the impact of the decision of the European Court of Justice in Owusa v Jackson (C-281/02), rendering the doctrine of forum non conveniens incompatible with the mandatory nature of the Brussels Convention. This also affects non-EU jurisdictions, such as New Zealand, effectively ruling out any recourse to the doctrine in cases where at least one defendant is domiciled in an EU state, regardless of where the other defendants are domiciled.

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"Damages and Territorial Jurisdiction: Judicial Interpretation of Rule 219(a) and the Case for Reform"

Giora Shapira, 2006

The author critically examines New Zealand case law on R 219(a) with specific reference to: (1) the judicial creation of a “good arguable case on the merits” test, and (2) the broad interpretation of “damages” within the context of trans-national tort actions. The author advocates law reform through the abolition of the “good arguable case” requirement and a reformulation of R 219(a), based on a comparison with other jurisdictions, to bring it in line with modern international trends.

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"Forum Non Conveniens in New Zealand"

RJ Paterson, 1989

This article presents an in-depth account of the origin and development of the doctrine of forum non conveniens in England and its subsequent reception in New Zealand. The author analyses the interpretation and application of forum non conveniens in New Zealand case law with reference to service both within and out of New Zealand. Policy considerations, crucial to the exercise of the courts’ discretion in forum non conveniens matters, are discussed and evaluated in detail. The author concludes with a critical evaluation of the allocation and extent of the burden of proof in forum non conveniens cases and proposes a correction to the plaintiff-biased way in which the doctrine has been applied in New Zealand.

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"From Savigny to Cyberspace: Does the Internet Sound the Death-Knell for the Conflict of Laws?"

Campbell McLachlan, 2006

This article examines the challenges posed by the internet for classic conflicts theory and method in regard to cross-border communications with specific reference to defamation, privacy and copyright. A detailed comparative survey refers extensively to law reform initiatives and jurisprudential developments in a number of Anglo-Commonwealth countries, as well as Europe. The author explores the dynamics of the interplay between jurisdiction and choice of law and its effect on the traditional principle of territoriality within the context of cross-border communications disputes.

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"Global Disputes – Jurisdiction, Interim Relief and Enforcement of Judgments"

David Goddard, 1999

This contribution contains extracts from a paper prepared by David Goddard for the NZLS triennial conference. The focus is on cross-border disputes, especially trans-Tasman disputes, and the problems involved in the enforcement of interim orders and final judgments. The inadequacy of legislation in this area is highlighted and accession to and participation in relevant international conventions are recommended.

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"Good Faith in Conflict(s): The International Commercial Contract Dimension"

Elsabe Schoeman, 2005

This article addresses the concept of good faith in respect of international commercial contracts. Specific reference is made to good faith as a possible restriction on party autonomy and the role of mandatory statutes. The author also highlights problems relating to proof of foreign law where a (foreign) concept of good faith is in issue and how this impacts on litigation strategy.

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“Woodhouse Reprised: Accident Compensation and Trans-Tasman Integration”

Reid Mortensen, 2003

The author provides an in depth analysis of the ways in which New Zealand’s accident compensation scheme is inadequately accommodated by the Trans-Tasman Proceedings Acts. The disparities between the compensation provided by the ACC and common law damages available for personal injury claims in the Australian States is said to be the principle cause of forum shopping within the trans-Tasman area. The author demonstrates how overemphasis on the similarities between the legal systems of New Zealand and Australian has resulted in statutory drafting that is ill equipped to deal effectively with this issue. By way of solution statutory amendment is recommend for both the Trans-Tasman Proceedings Acts as well as the Accident Compensation Act.

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"Exclusive Jurisdiction Clauses – A New Zealand Perspective on the Hague Convention on Choice of Court Agreements"

G Shapira and R Lazarovitch, 2008

Exclusive jurisdiction clauses are a frequently used tool in transnational contracts. The parties agree on a forum that would hear any potential dispute. This should ensure certainty and predictability for all parties. However, the complexity of the New Zealand rules and the jurisdictional discretion of the courts lead to often unpredictable results when exclusive jurisdiction clauses are encountered. The 2005 Hague Convention on Choice of Court Agreements aims to address such problems with clear rules that promote certainty in commercial dealings and validate party autonomy. Even though the Convention is not free from criticism, the authors conclude that New Zealand should nonetheless adopt it.

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“Service Abroad without Leave: Taking Seaconsar Seriously’’

Elsabe Schoeman, 2010

The New Zealand High Court Rules in respect of service abroad without leave (r 6.27) now incorporate the “serious issue to be tried on the merits” test. This article examines the important difference between the “good arguable case” and “serious issue to be tried on the merits” tests using Lord Goff’s authoritative statements in Seaconsar Far East Ltd v Bank Markazi Jomhouri Islami Iran. The author urges the Courts to embrace Lord Goff’s clarification as an opportunity to provide certainty and accuracy in relation to the interpretation and application of the “serious issue to be tried on the merits” test.

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“The Australia and New Zealand Judgments Scheme: A Common Law Judicial Area”

Oliver L Knöfel and Reid G Mortensen, 2011

This article provides a comprehensive background to the enactment of the trans-Tasman Proceedings Acts in both Australia and New Zealand within the context of the Closer Economic Relations Trade Agreement (1983) between the two countries. It also provides a comparative perspective on the trans-Tasman vis-à-vis European Union, other European and Hague Conference arrangements in the area of cross-border jurisdiction and judgments. Discussing the details of the new trans-Tasman scheme, the authors identify a number of potential obstacles, one of those being the very different accident compensation schemes obtaining in New Zealand and Australia. On the whole, however, the scheme promises to be most successful in the regulation of trans-Tasman jurisdiction and judgments.

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“Conflict of Laws”

Elsabe Schoeman, 2013

This review of New Zealand cases and other developments covers the first series of cases dealing with the new High Court Rules, which came into operation on 1 February 2009. The review also covers the new Limitation Act 2010 and the Trans-Tasman Proceedings Act 2010, as well as a new case on the jurisdiction of a New Zealand court in respect of the infringement of a foreign (US)-registered patent.

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“Assumption of Jurisdiction – Supreme Court of Canada Simplifies its Test”

Maya Mandery, 2013

This article discusses the new analytical framework on assumption of jurisdiction in tort actions involving foreign defendants set by the Supreme Court of Canada in the three cases: Club Resorts Ltd v Van Breda 2012 SCC 17, [2012] 1 SCR 572; Editions Ecosociete Inc v Banro Corp 2012 SCC 18, [2012] 1 SCR 636 and Breeden v Black 2012 SCC 19, [2012] 1 SCR 666. The framework ensures that courts will have presumptive jurisdiction over multi-jurisdictional disputes concerning tort claims in cases where the tort was committed within the province. The clear separation and identification of the factors relevant for both the existence of jurisdiction over tort claims and the inquiry into the discretionary exercise of jurisdiction, provides useful comparative perspectives for New Zealand courts when dealing with multiple-jurisdictional tort claims.

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“Closer Economic Relations – A Trans-Tasman Confederation?”

JLR Davis, 2010

The author considers the impact of several pieces of legislation on the relationship between Australia and New Zealand. Particular attention is paid to the extension of the jurisdiction of the superior courts of each county under the Trans-Tasman Proceedings Act 2010. The criticism of this extension regarding potential forum shopping as well as the problems related to the differing approaches to forum non conveniens issues are discussed. It is argued that the cumulative effect of this legislation has been to extend the jurisdictional reach of the courts of both countries to such an extent that their relationship can now be characterised as a loose confederation.

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“A Trans-Tasman Judicial Area: Civil Jurisdictions and Judgments in the Single Economic Market”

Reid Mortensen, 2010

This article provides a close analysis of the trans-Tasman civil jurisdiction and judgment scheme that exists between New Zealand and Australia. Analysis focuses on comparing and contrasting Australia’s domestic conflict of laws rules with the scheme set up by the Trans-Tasman Proceedings Act 2010. In particular the schemes failure to address issues of lis pendens is focused on. However, the author is clear that the shortcomings of the scheme should not be over-emphasised.

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“Rethinking Jurisdiction Clauses in New Zealand: The Hague Convention and Beyond”

Michelle Ong, 2013

In this article, the author advocates for the routine enforcement of jurisdiction clauses based on the fundamental principles of respect for party autonomy and freedom of contract. The author criticises the courts’ current approach to the categorisation of jurisdiction clauses under the labels of exclusive and non-exclusive and suggests an alternative, more nuanced approach. Further criticism is focused on the courts’ failure to apply consistent tests in deciding whether or not to exercise jurisdiction. The Trans-Tasman Treaty is commended for its insistence on stricter enforcement of jurisdiction clauses however the author argues that there is scope to go further. In this context the author compares the Hague Convention on Choice of Court Agreements and the Trans-Tasman Treaty.

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“The Choice of Law Agreement as a Reason for Exercising Jurisdiction”

Maria Hook, 2014

The author examines the effect of choice of law agreements on the courts’ exercise of jurisdiction. The focus is on whether English courts should exercise jurisdiction to uphold choice of law agreements that would otherwise be defeated in a competing forum. The author argues that the two main reasons advanced in support of this approach, that courts should prioritise the choice of law rules of the forum and that the parties should be held to their agreement, are not justifiable in principle. The author goes on to analyse how these reasons risk undermining the principle of close connection and party autonomy.

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“The Court’s In Personam Jurisdiction in Cases Involving Foreign Land”

Jack Wass, 2014

This article considers the primary exception to the Mozambique rule: where a court assumes jurisdiction in personam to enforce a contractual or equitable claim concerning foreign immovable property against a defendant subject to the courts personal jurisdiction. The author suggests that within this context the orthodox English approach to questions of jurisdiction is unsatisfactory. It is suggested that modern conflict of laws principles require that English courts apply the proper law of the claim when determining whether there is a sufficient equitable or contractual obligation to invoke the courts’ in personam jurisdiction. It is the author’s view that such an approach coupled with a robust application of the forum non conveniens doctrine will promote comity, consistency and the interests of justice. The author goes on to advocate for the recognition of foreign judgments that give effect to personal obligations in relations to English land

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"The 'Statutist Trap' and Subject-Matter Jurisdiction"

Maria Hook, 2017

This article explores the problems associated with an exclusive focus by courts on statutory interpretation when determining whether a statute applies to foreign facts, overlooking the application of conflict of laws principles. This focus is referred to as “statutism.” In particular, the author focuses on how statutism risks distortion of established notions of subject-matter jurisdiction in two ways. First, statutism can lead courts to overlook the choice of law process. Courts may conclude that if the relevant statute does not apply they must lack subject-matter jurisdiction over the dispute, overlooking the possibility that they can adjudicate the dispute according to foreign law. Second, statutism, by deciding the question of subject-matter jurisdiction according to statutory interpretation, prevents a proper analysis of whether the court has subject-matter jurisdiction according to the external conflict of laws framework.

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"Trans-Tasman Court Proceedings and Regulatory Enforcement"

David Goddard, 2014

The author outlines the rationale for the trans-Tasman proceedings regime, evaluates its practical significance and considers alternative methods that might have been adopted to achieve the same ends.

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Private International Law – Litigating in the Trans-Tasman Context and Beyond

David Goddard and Campbell McLachlan, 2012

This New Zealand Law Society booklet provides a practical guide to private international law in New Zealand.

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"Interim relief in support of foreign arbitrations and judicial proceedings"

Jack Wass, 2017

The author considers the High Court's powers to grant interim protective relief in aid of substantive proceedings, and argues that the Court has been wrong to hold that it may not consider such applications before it has determined a respondent's protest to jurisdiction.

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"When in Rome (II): Jurisdiction, choice of law and foreign copyright infringement in New Zealand courts"

Adam Holden, 2016

The author advocates for reform of the New Zealand approach to cases involving foreign copyright infringement.

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A Casebook on the Conflict of Laws of New Zealand

PRH Webb and JLR Davis, 1970

Cases and materials on the New Zealand conflict of laws

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Conflict of Laws

BD Inglis, 1959

This textbook covers the main areas of conflict of laws.

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Conflict of Laws: The International Element in Commerce and Litigation

David Goddard, 1991

This New Zealand Law Society booklet provides a practical guide to private international law in New Zealand.

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Private International Law in New Zealand

David Goddard and Helen McQueen, 2001

This New Zealand Law Society booklet provides a practical guide to private international law in New Zealand.

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"A View from Australia's Regional Partners - Recent Developments in New Zealand and Singapore"

Elsabe Schoeman and Adeline Chong, 2014

The authors consider recent conflict of laws developments in New Zealand and Singapore. The review of New Zealand developments covers the first series of cases dealing with the new High Court Rules, which came into operation on 1 February 2009. The review also covers the new Limitation Act 2010 and the Trans-Tasman Proceedings Act 2010, as well as a new case on the jurisdiction of a New Zealand court in respect of the infringement of a foreign (US)-registered patent.