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Articles for the category "General Theory"

"Conflict of Laws and Vessel Ownership"

Paul Myburgh, 2005

In a comment on Tisand (Pty) Ltd v The Owners of the Ship MV Cape Moreton (ex Freya) [2005] FCAFC 68, 29 April 2005, the author analyses the approach of the Court to the issue of foreign vessel ownership within the context of admiralty jurisdiction. The Court characterised the issue as relating to the transfer of property rights and subject to the lex situs, rather than a jurisdictional matter subject to the lex fori. The author supports the Court’s rejection of the lex fori approach and welcomes the Court’s sophisticated analysis of the conflicts issues involved.

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"New Zealand"

Tony Angelo, 2011

The national monograph on New Zealand in the International Encyclopaedia for Private International Law.

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"The New Zealand Accident Compensation Scheme: The Statutory Bar and the Conflict of Laws"

Elsabe Schoeman and Rosemary Tobin, 2005

The authors examine the nature and effect of the statutory bar on compensatory damages in the Injury Prevention, Rehabilitation, and Compensation Act 2001 within the context of the double actionability rule for transnational torts. The focus is on the aims of the Accident Compensation Scheme and the implications of characterising the statutory bar as either substantive or procedural. With reference to recent developments in regard to the characterisation of comparable rules restricting or barring the recovery of damages, the authors support a substantive characterisation.

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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, 1989

This is a brief comment on the Court of Appeal’s interpretation and application of the rule that courts will not enforce a foreign penal, revenue or other public law in Attorney-General for the United Kingdom v Wellington Newspapers Ltd [1988] 1 NZLR 129 (known as the Spycatcher case). Despite the decision of the Court that publication was justified in the public interest, the author is critical of the significance attributed to the support that the New Zealand Government lent to the claim by the British Government.

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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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"A Proposal to Improve the Protection of New Zealand’s Movable Cultural Heritage by Means of a Statutory Trust"

Jonathan Keate, 1993

This article examines and evaluates the effectiveness of the Protection of Movable Cultural Heritage Bill, focusing on the recovery of illegally exported cultural property with reference to the private international law principles of unenforceability of foreign penal and other public laws. The author proposes the creation of a statutory trust, which would accord with charitable trust principles, as a more effective means to recover illegally exported cultural objects through proceedings in overseas courts.

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"Losing a Domicile of Choice"

GF Orchard, 1968

In a note on Re Flynn (deceased) Flynn v Flynn, the author discusses the different tests as regards the requisite intention for the abandonment of a domicile of choice: (1) the loss of the requisite intention for acquiring a domicile of choice, or (2) a positive intention not to return to the domicile of choice. The first test was favoured in Re Flynn, which would have made it easier to lose a domicile of choice and, at the time, that would more readily have led to a revival of the domicile of origin.

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"Reform of the Law of Domicile in Australasia with Particular Reference to the New Zealand Domicile Act 1976"

CF Forsyth, 1977

In this article the author highlights and comments on the most important reforms introduced by the Domicile Act 1976. The main focus is on: the abolition of the domicile of dependence in the case of married women and potential problems regarding the ascertainment of the matrimonial domicile where spouses have different domiciles; the domicile of children and problem areas, such as the domicile of foundlings and adoptive children; the abolition of the revival of the domicile of origin; the new statutory domicile of choice.

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“The Concept of Modal Choice of Law Rules”

Maria Hook, 2015

The author argues that choice of law rules are not self-contained tools, rather they are supplemented not only by substantive law and judicial discretion but also by what the author terms ‘modal choice of law rules’. One example of this concept is a rule that requires a choice of law agreement to be in writing. The modal choice of law rule supplements the rule that contracts be governed by the law that the parties intended to apply. The author argues that modal choice of law rules can be utilised in place of judicial discretion to provide greater predictability in the application of a choice of law rule. In addition, they may act as a valuable supplement to areas of substantive law that lack the rules needed to properly define a choice of law element. The benefits of applying foreign modal choice of choice of law rules are identified as: uniformity of outcome, increased certainty and associated enforceability of the judgment overseas.

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“Is it Mandatory? State Interests, General Words and International Contracts”

Scott Winnard, 2014

The author argues that statutory interpretation is not an adequate mechanism for determining when legislation has an internationally mandatory effect. Reliance on statutory interpretation is said to result in judicial bias towards assigning international effect to the forum’s domestic legislation. By way of solution the author suggests that reliance should instead be placed on traditional conflict of laws rules, a decision-making mechanism that was specifically designed to provide impartiality between competing legal systems. Within this broader analysis is a discussion of the possible application of the Residential Tenancies Act 1986 to international tenancy agreements.

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"Recognition and Priority of Foreign Ship Mortgages"

Paul Myburgh, 1992

In The Ship “Betty Ott” v General Bills Ltd (The Betty Ott) [1992] 1 NZLR 655 the Court of Appeal held that a foreign-registered ship mortgage did not enjoy priority over an earlier equitable charge. In a critical analysis of this decision, the author points out that the Court’s approach to choice of law was based on the discredited doctrine of comity and reciprocity. Furthermore, the decision holds serious implications in regard to the security afforded by registered ship mortgages.

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"The Judicial Process in the Conflict of Laws"

BD Inglis, 1958

With reference to English case law and English text-writers, the author analyses the foreign court-theory in respect of renvoi, arguing in favour of its application and dealing with criticism leveled against it. The author also discusses the problem of classification, concluding that all conflicts issues are governed by English domestic law, except those that are referred to foreign law by choice of law rules. Once so referred, there is no need to classify the foreign law rules; whether a particular foreign law rule applies, depends on whether it answers the question referred to it by English law.

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"The New Zealand Ship Registration Act 1992"

Paul Myburgh, 1993

In a discussion of the New Zealand Ship Registration Act 1992, the author draws attention to section 70, in terms of which “instruments creating securities or charges” in respect of foreign-registered ships, if duly registered in accordance with the law of the flag, will have the same effect as a ship mortgage registered under the Act. The author is critical of the broad range of foreign security interests, each of which may be of a different nature according to the lex causae, being grouped together within the category of a (domestic) ship mortgage.

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"The Territorial Scope of New Zealand Employment Law: Quarter-Acre or Global Village?"

Paul Myburgh and Linda Patullo, 2003

In Mehta v Elliot (Labour Inspector) AEC 34/02, AC 2A/03, 9 July 2003 (Judge Colgan), the judge denied extra-territorial scope to protective provisions in the Wage Protection Act 1983 in circumstances where a premium had been paid overseas. The authors analyse the decision, concluding that the judge had arguably (in a difficult, borderline case) overemphasised the general presumption against extra-territoriality in the absence of a clear indication of its territorial reach. They propose that the legislature review the territorial scope of existing statutes and spell out the territorial reach of propsed statutory provisions.

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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 draw attention to the fact that a mortgagee’s interest in land is classified as movable in New Zealand and not immovable (as in England).

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"Conflict of Laws: Ikushima v Keeys"

Tony Angelo, 2004

In regard to judgments in foreign currency, the author briefly notes that Ikushima v Keeys (HC Auckland, Heath J, 11 March 2004, CIV 2003-488-37) seems to treat the currency of judgment and the date of conversion of the debt as a matter of discretion. However, the plaintiff is free to choose the currency of judgment and conversion is only required should New Zealand enforcement procedures come into play.

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"Conflict of Laws: SK v KP"

Tony Angelo, 2005

SK v KP (CA 64/04, 24 February 2005) was concerned with the interpretation of habitual residence as a connecting factor in regard to the Convention on the Civil Aspects of International Child Abduction. The author points to the fine line between matters of fact and law, emphasising that a fact decision at first instance should not be overturned unless it is clearly wrong. Attention is also focused on issues regarding the method of implementing the Convention (paraphrasing rather than direct import) as well as the lack of promptness in these proceedings.

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"Domicile of Choice"

AA Tarr, 1980

The author discusses the abandonment of a domicile of origin and the acquisition of a domicile of choice with reference to Puttick v Attorney-General and Puttick. The note focuses on the effect of a fraudulently acquired residence on the prerequisites for the establishment of a domicile of choice, ie lawful residence and the intention to remain indefinitely.

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"Enforceability of Foreign Laws"

Sean McAnally, 2002

This is a brief discussion of USA v “A Ltd” (High Court, Cook Islands, PL57/00, 4 December 2001, Greig CJ) in which the rule that a court will not enforce a foreign penal, revenue or other public law, was confirmed. The author draws specific attention to the decision that a law, which provides only in part for a penalty, will nevertheless be classified as a penal.

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“Cox v Ergo Versicherung AG: Statutory Packages in Transnational Personal Injury Cases”

Elsabe Schoeman, 2015

The assessment of damages in transnational personal injury claims poses a unique challenge for private international law theory and practice. Traditionally viewed as a procedural matter, there are strong reasons for the assessment of damages to be recognised as an integral part of a personal injury statutory package to be governed by the lex causae of the tort. This article questions the characterisation of the assessment of damages as substantive or procedural to determine which law governs such assessment, arguing that Etherton LJ’s approach, focusing on the causal connection between liability and loss, may provide a better approach to statutory packages.

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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 Ship Supplier’s Lien: Taking a (Maple) Leaf out of the Canadian Statute Book?”

Paul Myburgh, 2010

This article discusses the different treatment of ship suppliers’ claims in Anglo-Common Law jurisdictions. The United States, until recently, was the only jurisdiction that granted a maritime lien status to such claims. Canada, to avoid discrepancies with the United States, which could lead to forum shopping, has recently introduced a statutory maritime lien for certain ship suppliers’ claims. The author urges other Anglo-Common Law jurisdictions, including New Zealand, to reconsider their position in light of such developments.

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“Rome II and the Substance-Procedure Dichotomy: Crossing the Rubicon”

Elsabe Schoeman, 2010

The article examines the approach adopted in Rome II towards the substance-procedure distinction and signposts its potential significance for contemporary conflicts theory from an Anglo-Common Law perspective. The Rome II approach is regarded to be generally different from the one found under the common law. This is evident from a far broader category of matters assigned to the applicable law and a corresponding narrower category of matters governed by the lex fori. The author urges Anglo-Common Law jurisdictions to pay closer attention to Rome II and use it to re-evaluate their own positions in regard to the distinction between substance and procedure.

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“Through the looking glass: Renvoi in the New Zealand Context”

Rina See, 2012

This article provides an in depth analysis of the renvoi doctrine and its potential application in New Zealand. The author argues that the doctrine is best used where it promotes the purpose of the relevant choice of law rule. The doctrine’s possible scope and application is examined against the choice of law rules of several areas of law as they apply in New Zealand. The decision in Neilson v Overseas Projects Corporation of Victoria Ltd is then situated within the context of that broader discussion.

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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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"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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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.