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Articles for the keyword(s) "Double actionability rule"

"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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"New Zealand Accident Compensation and the Foreign Plaintiff: Some Conflict of Laws Problems"

Giora Shapira, 1980

The author looks at the implications of the New Zealand Accident Compensation Scheme for foreign plaintiffs, and the inadequacy of recovery, within the context of the double actionability rule for tort. The challenge for tort choice of law is to secure a proper remedy for the foreign plaintiff, while protecting local defendants against tort liability. Since the double actionability rule cannot achieve this, the author explores the “proper law of the tort” doctrine as applied in US case law concerning workmen’s compensation statutes.

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"Tortious Liability and Conflicts"

Nicky Richardson, 2003

This case note on Kuwait Airways Corp v Iraqi Airways Co [2002] 3 All ER 209 (HL) highlights the complexities and uncertainty of the double actionability rule for tort. The application of the public policy exclusion to an expropriatory resolution (which was in breach of public international law rules) presented a unique challenge. The author suggests reform similar to the English Private International Law (Miscellaneous Provisions) Act 1995.

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"Double Actionability and the Choice of Law"

Nicky Richardson, 2002

The double actionability rule is the New Zealand tort choice of law rule. This article explains what the “double actionability” requirements are, and how they have been applied by the House of Lords and the Privy Council. The author spends considerable time discussing the House of Lords decision in Kuwait Airways Corporation v Iraqi Airways Company, pointing out that this case raises more problems than it solves. The author concludes that the double actionability rule did not produce any unjust results prior to the Kuwait case and should therefore be retained as the New Zealand conflict rule.

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"Horse and Buggy on the Electronic Highway: Transnational Internet Defamation in the High Court of Australia"

Paul Myburgh and Rosemary Tobin, 2003

This article presents a critical analysis of the decision in Dow Jones & Co Inc v Gutnick (2002) 194 ALR 433, [2002] HCA 56. The authors focus on the implications of the common law multiple publication rule and problems in locating the place of the tort for purposes of jurisdiction and choice of law in transnational internet defamation. Disappointment is expressed at the unwillingness of the majority to engage with and reformulate traditional defamation law principles in recognition of the revolutionary nature of internet communications.

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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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“Third (Anglo-Common Law) Countries and Rome II: Dilemma or Deliverance”

Elsabe Schoeman, 2011

The Rome II Regulation deals with choice of law in tort. The article examines the value of this Regulation vis-à-vis third (non-EU Anglo-Common law) countries, analysing the unique EU environment and the continuous movement towards uniformity and certainty. The author discusses the general choice of law regime laid down in Article 4 of the Regulation and applies it to two famous Anglo-Common law cases: Neilson v Overseas Projects Corporation of Victoria Ltd and Harding v Wealands, concluding that these cases would probably have been decided differently under Rome II. The article concludes that Rome II may indeed have comparative value for these third countries and that its importance should not be underestimated.

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"Reform of Choice of Law Rules for Tort"

Jack Wass and Maria Hook, 2017

The authors comment upon various aspects of the Private International Law (Choice of Law in Tort) Bill. The Bill abolishes the long-standing double actionability rule governing the choice of law in tort claims in New Zealand. The approach mandated by the Bill is that the New Zealand courts apply the lex loci delicti, with a flexible exception where the case is substantially more closely connected with another country. The authors explain the Bill’s approach and argue that it is sufficiently versatile to cover claims such as defamation and breach of intellectual property rights. The authors suggest that the Bill should exclude the doctrine of renvoi, given that the function of choice of law rules is to identify which country’s law New Zealand courts, not foreign courts, should apply to a particular claim. Finally, the authors recommend that the Bill allow for future common law developments in cases where parties agree as to the law that should apply to tort claims arising within their relationship.