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Articles for the keyword(s) "Mandatory rules"

"Case Comment: Musashi Pty Ltd v Moore"

Gordon Anderson, 2002

This brief comment on Musashi Pty Ltd v Moore, Employment Court, 9 October 2001 (AC 43A/01) Judge Colgan, focuses on the undesirability of allowing choice of a foreign proper law, as well as a foreign forum, in an employment contract where the work is to be performed in New Zealand. The author proposes legislative intervention to remedy the situation.

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"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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“Overseas Workers and New Zealand Employment Legislation”

Jacquelin Mackinnon, 2012

After a brief survey of the legal issues that can arise from employment agreements that have a foreign element, the author discusses the scope of employment rights legislation. The author notes that while the provisions of the Employment Relations Act 2000 are broadly expressed and contain no express limitation on the Act’s application to contracts with a foreign element, it has not been interpreted as a mandatory legislative scheme. It is clear however, that the legislature intended that the protection afforded by the Act should be available in cases where New Zealand law is the proper law of the contract. The author discusses how this is implemented through the limitations imposed by the Act on party autonomy as to choice of law.

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“Is it Mandatory? State Interests, General Words and International Contracts”

Scott Winnard, 2014

The author argues that statutory interpretation is not an adequate mechanism for determining when legislation has an internationally mandatory effect. Reliance on statutory interpretation is said to result in judicial bias towards assigning international effect to the forum’s domestic legislation. By way of solution the author suggests that reliance should instead be placed on traditional conflict of laws rules, a decision-making mechanism that was specifically designed to provide impartiality between competing legal systems. Within this broader analysis is a discussion of the possible application of the Residential Tenancies Act 1986 to international tenancy agreements.

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"Choice of Law Clauses in International Contracts: Overseas Developments"

Nicky Richardson, 1992

The author provides an in-depth discussion and criticism of the Rome Convention on the Law Applicable to Contractual Obligations (1980). The essence of the discussion centres on how the Convention deals with the concept of party autonomy in contractual situations. The author concludes that Article 3 supports party autonomy and clarifies certain related matters, whereas Article 7(1), which relates to mandatory rules, is an ambiguous and uncertain provision. Lastly, it is suggested that the concepts of characteristic performance and mandatory rules should be considered when reforming New Zealand choice of law in contract.

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"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.

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"Consumer Protection and Mandatory Conflict of Laws Provisions"

Joshua Woo, 2015

The author proposes three criteria for determining the effectiveness of a particular consumer protection law and argues that s 137 of the Credit Contract and Consumer Finance Act 2003 does not meet these criteria.

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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.