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Articles for the keyword(s) "Flexible exception"

"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 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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"Renvoi: Throwing (and Catching) the Boomerang – Neilson v Overseas Projects Corporation of Victoria Ltd"

Elsabe Schoeman, 2006

The author examines the decision in Neilson v Overseas Projects Corporation of Victoria Ltd [2005] HCA 54 with specific reference to the application of renvoi in transnational tort litigation and the application of a (foreign) flexible exception to the lex loci delicti. In regard to both of these matters, the case presented unique problems as a result of inadequate proof of the foreign (Chinese) law concerned. The author submits that renvoi and (foreign) exceptions are not appropriate ways of dealing with a rigid forum choice of law rule for tort.

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“Conflict of Laws International Torts Cases: The Need for Reform on Both Sides of the Tasman”

Anthony Gray, 2006

The author argues that the double actionability rule, which has survived in New Zealand, is no longer best suited for choice of law in tort. Instead, the lex loci delicti should be the preferred rule supplemented by a flexible exception. The author undertakes an in-depth analysis of the North American jurisprudence in this area, focusing on the value of the distinction between conduct regulation and loss distribution. He concludes that Australia and New Zealand should adopt similar choice of law rules for torts.

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"Tort Choice of Law in New Zealand: Recommendations for Reform"

Elsabe Schoeman, 2004

This article provides a detailed analysis of the double actionability rule and its flexible exception as applied to transnational tort issues in New Zealand. The author explores the value and significance of jurisdiction- and rule-selecting approaches and, against the background of reforms in other Anglo-Common Law jurisdictions, recommends the adoption of the lex loci delicti with a “proper law” exception for New Zealand.

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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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"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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"Harding v Wealands: Substance v Procedure in the English Courts"

Elsabe Schoeman, 2007

This comment on Harding v Wealands [2006] UKHL 32 addresses two issues in transnational tort litigation: (1) the application of an exception to a general tort choice of law rule, and (2) the role of the substance-procedure dichotomy. The author submits that the substance-procedure distinction is being manipulated to achieve the desired result, while the focus should be on the identification of the appropriate lex causae.

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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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“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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"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.