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Articles for the keyword(s) "Comity"

"Lex Mercatoria: Can General Principles of Law Govern International Commercial Contracts?"

Richard J Howarth, 2004

This article explores choice of law in international commercial contracts with reference to the Lex Mercatoria within the context of unification of international commercial law. The author presents a detailed survey of the origins of the Lex Mercatoria, contemporary arguments supporting its existence, recognition of the Lex Mercatoria in a number of international legal instruments and its modern applications. The uneasy relationship between the Lex Mercatoria and courts in civil code and common law jurisdictions, including New Zealand, is also examined.

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"Lorentzen v Lydden: Dead and Buried?"

Elsabe Schoeman, 2004

In Peer International Corp v Termidor Music Publishers Ltd [2004] 2 WLR 849 the English Court of Appeal applied the lex situs rule to deny extraterritorial effect to a foreign governmental act (Cuban Law 860) in regard to (English-owned) copyright. Although this decision has effectively overruled Lorentzen v Lydden & Co Ltd [1942] 2 KB 202, the author points out that reference was made to the nature of the decree (confiscatory or not), which should not have been a relevant consideration on the facts of the case.

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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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"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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"Enforcement of Foreign Judgments"

Laurette Barnard, 1996

This is a review of the decision in Bolton v Marine Services Ltd CA251/93 5 February 1996, in terms of which a foreign irregular judgment, which had not been set aside in the foreign court because the judgment debtor was in contempt, could be enforced in New Zealand. The author criticises the Court’s interpretation of the public policy exclusion as it applies to the enforcement of foreign judgments, as well as the Court’s failure to appreciate the penal nature (and unenforceability) of the judgment debt.

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"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.