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Articles for the keyword(s) "Proper law of contract"

"Choice of Law in International Contracts – The Objective Proper Law Reconsidered"

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.

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"Jurisdiction Clauses"

AA Tarr, 1980

In this note on Carvalho v Hull Blyth (Angola) Ltd [1979] 3 All ER 280, the author discusses the factors relevant to a discretionary stay in the case of an exclusive jurisdiction clause. The author also explores the significance of an express forum selection with respect to the establishment of the proper law of a contract in the absence of an express choice of law.

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"Jurisdiction Clauses"

AA Tarr, 1981

In this note on Carvalho v Hull Blyth (Angola) Ltd [1979] 3 All ER 280, the author discusses the factors relevant to a discretionary stay in the case of an exclusive jurisdiction clause. The author also explores the significance of an express forum selection with respect to the establishment of the proper law of a contract in the absence of an express choice of law.

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"The Concept of Characteristic Performance and the Proper Law Doctrine"

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.

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"Exclusive Jurisdiction Clauses – A New Zealand Perspective on the Hague Convention on Choice of Court Agreements"

G Shapira and R Lazarovitch, 2008

Exclusive jurisdiction clauses are a frequently used tool in transnational contracts. The parties agree on a forum that would hear any potential dispute. This should ensure certainty and predictability for all parties. However, the complexity of the New Zealand rules and the jurisdictional discretion of the courts lead to often unpredictable results when exclusive jurisdiction clauses are encountered. The 2005 Hague Convention on Choice of Court Agreements aims to address such problems with clear rules that promote certainty in commercial dealings and validate party autonomy. Even though the Convention is not free from criticism, the authors conclude that New Zealand should nonetheless adopt it.

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"Tort Choice of Law in New Zealand: Recommendations for Reform"

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.

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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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"Splitting the Proper Law in Private International Law"

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.

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“The Law Governing Letters of Credit”

Anthea Markstein, 2010

The author argues that the ‘rule’ that the same law should govern all contracts in a letter of credit transaction should be jettisoned in favour of an approach that seeks to achieve uniformity in the governing law only where such an outcome is supported by the parties’ commercial expectations. It is suggested that where commercial expectations do not support uniformity of governing law across all contracts, legal certainty and ascertaining the governing law most connected to the contract should be the paramount policy considerations. The author analyses three possible approaches as to how this may be achieved in the context of freely negotiable letters of credit.