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Articles for the category "Contract"

"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, the authors briefly touch on the applicability of New Zealand legislation to contracts governed by foreign law, as well as the applicability of foreign statutes to contracts governed by New Zealand law.

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"Choice of Law in International Contracts – The Objective Proper Law Reconsidered"

Laurette Barnard, 1996

This article presents a detailed analysis of the way in which New Zealand courts determine the objective proper law of a contract in the absence of a choice by the parties. With reference to case law, the author argues that the current practice of determining such proper law on the basis of the “closest and most real connection” test does not translate into certainty and predictability and does not serve the goals of commercial convenience and business efficacy. The author proposes the development of a set of coherent presumptions, or rules subject to flexible exceptions, for each kind of contract.

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"Conflict of Laws"

RJ Paterson, 1992

In an overview of developments in Conflict of Laws (1990-1992), the author notes Apple Computer Inc v Apple Corps SA [1990] 2 NZLR 598, which confirms the rule that a contract, whether lawful in terms of the proper law of the contract or not, will be invalid in so far as performance is unlawful under the lex loci solutionis.

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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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"Legal Problems of New Zealand-Japanese Trade"

P Davis, 1969

This article is in two parts: the first provides a general outline of the Japanese legal system and the second part addresses the preliminary question of choice of law in contract before proceeding to particular aspects of a contract in New Zealand and Japanese law. In regard to party autonomy, New Zealand and Japanese law adopt a similar approach, but there is significant uncertainty and possible disparity in relation to the designation of the applicable law in the absence of an express choice of law by the parties.

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"Lex Mercatoria: Can General Principles of Law Govern International Commercial Contracts?"

Richard J Howarth, 2004

This article explores choice of law in international commercial contracts with reference to the Lex Mercatoria within the context of unification of international commercial law. The author presents a detailed survey of the origins of the Lex Mercatoria, contemporary arguments supporting its existence, recognition of the Lex Mercatoria in a number of international legal instruments and its modern applications. The uneasy relationship between the Lex Mercatoria and courts in civil code and common law jurisdictions, including New Zealand, is also examined.

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"Rationalising Contract Choice of Law Rules"

Peter Kincaid, 1993

This article focuses on the proper law of the contract with reference to the freedom of parties to choose the governing law, as well as determining the governing law in the absence of a choice by the parties. The author distinguishes between domestic and foreign contracts, the latter excluding all contracts that impinge on New Zealand society on the basis that the characteristic performer habitually resides in New Zealand. Taking the view that contract choice of law should reflect primarily the interests of the parties, with the forum’s public interests playing a secondary role only, the author explores limitations, such as mandatory laws and public policy, on the application of the designated proper law.

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“Overseas Workers and New Zealand Employment Legislation”

Jacquelin Mackinnon, 2012

After a brief survey of the legal issues that can arise from employment agreements that have a foreign element, the author discusses the scope of employment rights legislation. The author notes that while the provisions of the Employment Relations Act 2000 are broadly expressed and contain no express limitation on the Act’s application to contracts with a foreign element, it has not been interpreted as a mandatory legislative scheme. It is clear however, that the legislature intended that the protection afforded by the Act should be available in cases where New Zealand law is the proper law of the contract. The author discusses how this is implemented through the limitations imposed by the Act on party autonomy as to choice of law.

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"Choice of Law Clauses in International Contracts: Overseas Developments"

Nicky Richardson, 1992

The author provides an in-depth discussion and criticism of the Rome Convention on the Law Applicable to Contractual Obligations (1980). The essence of the discussion centres on how the Convention deals with the concept of party autonomy in contractual situations. The author concludes that Article 3 supports party autonomy and clarifies certain related matters, whereas Article 7(1), which relates to mandatory rules, is an ambiguous and uncertain provision. Lastly, it is suggested that the concepts of characteristic performance and mandatory rules should be considered when reforming New Zealand choice of law in contract.

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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, the authors briefly touch on the applicability of New Zealand legislation to contracts governed by foreign law, as well as the applicability of foreign statutes to contracts governed by New Zealand law.

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"Heaven Help the Overseas Conflict Lawyers"

PRH Webb, 1979

This note provides a brief survey of conflict of laws issues in relation to three New Zealand contract statutes (Illegal Contracts Act 1970, Contractual Mistakes Act 1977, Contractual Remedies Act 1979). The author laments the failure of the Legislature to consider conflict of laws implications when drafting these statutes, which has resulted in uncertainty regarding their territorial scope and intended application, especially when these statutes have to be considered by foreign courts.

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"The Concept of Characteristic Performance and the Proper Law Doctrine"

Nicky Richardson, 1989

This article discusses the concept of “characteristic performance” in relation to the Rome Convention on the Law applicable to Contractual Obligations 1980. The author explores the value of this concept with reference to Anglo-Common Law, and concludes that the concept of “characteristic performance” will do little to assist the court in determining the legal system that has the closest and most real connection with the contract.

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"The Formation of Interstate and International Contracts. A Note on the 1980 UN Convention on Contracts for the International Sale of Goods"

Nicky Richardson, 1989

This short note discusses the United Nations Convention on Contracts for the International Sale of Goods (also known as the Vienna Sales Convention). Particular emphasis is placed on Part II of the Convention that deals with formation of sales contracts. After discussing particular articles of interest, the author concludes that the Convention will go a long way in enhancing legal certainty for international sales contracts. The only cause for regret is that it only applies to certain sales contracts and not to contracts generally.

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"Splitting the Proper Law in Private International Law"

Campbell McLachlan, 1990

This article examines the doctrine of a split proper law in international contracts critically. The essence of the doctrine is that two or more aspects of the same contract can be governed by different laws. However, the proper law of the contract is both a unifying and simplifying concept, whose central purpose is to resolve disputes by subjecting the contract to a single legal system. Hence, a split proper law runs counter to this. The author conducts an in-depth analysis of relevant case law and international conventions in this area of the law and suggests ways of constructing a contract that appears to be subject to a split proper law.

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"Free Trade Agreement between the Government of the People’s Republic of China and the Government of New Zealand"

A H Angelo and Ping Xiong, 2008

This article provides a structural overview of the Free Trade Agreement between China and New Zealand. Particular focus is given to the dispute resolution mechanism put in place by the agreement. The last part of the article provides an introduction to the law of China. The author’s focus is on the main features of contract, commercial and intellectual property law. The conflict of laws rules regarding choice of law and the enforcement of foreign judgments relevant to these areas are also discussed.

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“The Law Governing Letters of Credit”

Anthea Markstein, 2010

The author argues that the ‘rule’ that the same law should govern all contracts in a letter of credit transaction should be jettisoned in favour of an approach that seeks to achieve uniformity in the governing law only where such an outcome is supported by the parties’ commercial expectations. It is suggested that where commercial expectations do not support uniformity of governing law across all contracts, legal certainty and ascertaining the governing law most connected to the contract should be the paramount policy considerations. The author analyses three possible approaches as to how this may be achieved in the context of freely negotiable letters of credit.

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"The Employment Relations Act and its effect on contracts governed by foreign law"

Maria Hook and Jack Wass, 2017

The authors analyse and critique the Court of Appeal's decision in New Zealand Basing Ltd v Brown [2016] NZCA 525, [2017] 2 NZLR 93. The issue in this case was whether New Zealand-based pilots could seek relief under the Employment Relations Act 2000 in relation to impending dismissal by their Hong Kong-based employer. The employment contracts were expressly governed by the law of Hong Kong.

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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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"Consumer Protection and Mandatory Conflict of Laws Provisions"

Joshua Woo, 2015

The author proposes three criteria for determining the effectiveness of a particular consumer protection law and argues that s 137 of the Credit Contract and Consumer Finance Act 2003 does not meet these criteria.

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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.