Accessibility Skip to Global Navigation Skip to Local Navigation Skip to Content Skip to Search Skip to Site Map

Articles for the keyword(s) "Forum non conveniens"

"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.

^ Top of page

"Copyright Infringement in New Zealand Law"

Graeme W Austin, 2000

This article addresses the territoriality of copyright laws in the context of jurisdiction and choice of law. The traditional obstacles to the justiciability of foreign copyright claims in New Zealand, namely the local action jurisdiction rule in regard to foreign immovables and the double actionability tort choice of law rule, are considered in the light of recent developments in the USA, Canada, Australia and the UK. The author concludes that flexibility introduced by Peace v Ove Arup [1999] 1 All ER 769 (CA) may pave the way for New Zealand courts to assume jurisdiction in foreign copyright infringement disputes.

^ Top of page

"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.

^ Top of page

"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.

^ Top of page

"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.

^ Top of page

"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.

^ Top of page

"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.

^ Top of page

"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.

^ Top of page

"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).

^ Top of page

"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.

^ Top of page

"Matrimonial Property"

PRH Webb, 1994

The author notes recent cases on matrimonial property and conflict of laws, amongst them Samarawickrema v Samarawickrema [1994] NZFLR 321; (1994)11 FRNZ 502 that dealt with foreign immovable property in terms of the Matrimonial Property Act 1976; and Gilmore v Gilmore [1993] NZFLR 561; (1993) 10 FRNZ 469, an application for stay of proceedings on the basis of forum non conveniens in trans-Tasman proceedings.

^ Top of page

"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.

^ Top of page

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

FM Auburn and PRH Webb, 1977

The aim of this contribution is to provide an outline of New Zealand conflict of laws with specific reference to distinguishing features. The main focus is on statutory jurisdiction in the areas of family law and succession, as well as jurisdiction in regard to immovable property and insolvency.

^ Top of page

"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.

^ Top of page

"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.

^ Top of page

"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.

^ Top of page

“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.

^ Top of page

"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.

^ Top of page

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

FM Auburn and PRH Webb, 1978

The aim of this contribution is to provide an outline of New Zealand conflict of laws with specific reference to distinguishing features. The main focus is on statutory jurisdiction in the areas of family law and succession, as well as jurisdiction in regard to immovable property and insolvency.

^ Top of page

"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.

^ Top of page

"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.

^ Top of page

"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.

^ Top of page

"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.

^ Top of page

"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.

^ Top of page

"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.

^ Top of page

"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.

^ Top of page

"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.

^ Top of page

"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.

^ Top of page

“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.

^ Top of page

“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.

^ Top of page

“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.

^ Top of page

“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.

^ Top of page

“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.

^ Top of page

“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.

^ Top of page

"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.

^ Top of page

"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.