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.
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.