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Articles for the keyword(s) "Choice of law"

"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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"Birch v Birch: Conflicts of Laws Principles"

Simon Porter, 2002

This is an analysis of Birch v Birch [2001] 3 NZLR 413; [2001] NZFLR 563, which concerned the division of the proceeds of a (formerly) foreign immovable asset in terms of the Matrimonial Property Act 1976 and more specifically the dates at which to classify, value and establish jurisdiction over such property. Although the Family Court and the High Court reached the same result, the author does not find the different approaches and reasoning adopted by the different judges entirely convincing.

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"Choice of Law in Equitable Wrongs: A Comparative Analysis"

Laurette Barnard, 1992

This article presents a comprehensive and in-depth comparative analysis of characterisation and choice of law in relation to equitable wrongs in English, Australian, Canadian and New Zealand law. The author proposes a flexible choice of law regime, based on the proper law of the claim, which should be determined with reference to the essential nature of equitable obligations and the policies operating in the field of fiduciary and related duties. Since the gaining of access to the beneficiary’s assets is the origin of the equitable obligation, the law under which access was gained should, subject to exceptions, constitute the proper law.

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"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.

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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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"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.

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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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"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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"Reforming New Zealand’s Conflicts Process: The Case for Internationalisation"

Campbell McLachlan, 1984

This article calls for the adoption of an internationalist approach in developing the discipline of private international law in New Zealand. With reference to trans-national custody disputes and international child abduction, the author illustrates the need for internationally agreed solutions in order to secure conflicts justice for individuals caught up in trans-national family disputes. New Zealand should participate in the work of Hague Conference on Private International Law and contribute to the development of uniform private international law rules.

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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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"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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"Section 7 of the Matrimonial Property Act 1976: A Choice of Law Rule?"

CF Forsyth, 1976

The author highlights a number of issues in regard to s 7 of the Matrimonial Property Act 1976 as a “choice of law” rule, such as: the complexity of the section in respect of its limits of application, outside of which the common law rules apply, as well as the unqualified adoption and extension of the principle of mutability to all movable property. Problems surrounding express choice of law clauses in marriage settlements and alternatives to “matrimonial domicile” as a connecting factor are also addressed.

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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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"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.

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"From Savigny to Cyberspace: Does the Internet Sound the Death-Knell for the Conflict of Laws?"

Campbell McLachlan, 2006

This article examines the challenges posed by the internet for classic conflicts theory and method in regard to cross-border communications with specific reference to defamation, privacy and copyright. A detailed comparative survey refers extensively to law reform initiatives and jurisprudential developments in a number of Anglo-Commonwealth countries, as well as Europe. The author explores the dynamics of the interplay between jurisdiction and choice of law and its effect on the traditional principle of territoriality within the context of cross-border communications disputes.

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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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“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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“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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"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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“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.

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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.

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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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"New Zealand's Choice of Law Rules Relating to Tort"

Maria Hook, 2018

This article examines the changes brought about by the Private International Law (Choice of Law in Tort) Act 2017 and identifies areas for future development.