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.
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.
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.
"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  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.
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.
Nicky Richardson, 2003
This case note on Kuwait Airways Corp v Iraqi Airways Co  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.
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.
Elsabe Schoeman, 2007
This comment on Harding v Wealands  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.
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  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.
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,  1 SCR 572; Editions Ecosociete Inc v Banro Corp 2012 SCC 18,  1 SCR 636 and Breeden v Black 2012 SCC 19,  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.
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.