P Davis, 1969
This article is in two parts: the first provides a general outline of the Japanese legal system and the second part addresses the preliminary question of choice of law in contract before proceeding to particular aspects of a contract in New Zealand and Japanese law. In regard to party autonomy, New Zealand and Japanese law adopt a similar approach, but there is significant uncertainty and possible disparity in relation to the designation of the applicable law in the absence of an express choice of law by the parties.
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.
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.
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.
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.
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.
Campbell McLachlan, 1990
This article examines the doctrine of a split proper law in international contracts critically. The essence of the doctrine is that two or more aspects of the same contract can be governed by different laws. However, the proper law of the contract is both a unifying and simplifying concept, whose central purpose is to resolve disputes by subjecting the contract to a single legal system. Hence, a split proper law runs counter to this. The author conducts an in-depth analysis of relevant case law and international conventions in this area of the law and suggests ways of constructing a contract that appears to be subject to a split proper law.
Maria Hook, 2014
The author examines the effect of choice of law agreements on the courts’ exercise of jurisdiction. The focus is on whether English courts should exercise jurisdiction to uphold choice of law agreements that would otherwise be defeated in a competing forum. The author argues that the two main reasons advanced in support of this approach, that courts should prioritise the choice of law rules of the forum and that the parties should be held to their agreement, are not justifiable in principle. The author goes on to analyse how these reasons risk undermining the principle of close connection and party autonomy.
Maria Hook, 2018
This article examines the changes brought about by the Private International Law (Choice of Law in Tort) Act 2017 and identifies areas for future development.