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.
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.
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.
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.