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.
Maria Hook, 2015
The author argues that choice of law rules are not self-contained tools, rather they are supplemented not only by substantive law and judicial discretion but also by what the author terms ‘modal choice of law rules’. One example of this concept is a rule that requires a choice of law agreement to be in writing. The modal choice of law rule supplements the rule that contracts be governed by the law that the parties intended to apply. The author argues that modal choice of law rules can be utilised in place of judicial discretion to provide greater predictability in the application of a choice of law rule. In addition, they may act as a valuable supplement to areas of substantive law that lack the rules needed to properly define a choice of law element. The benefits of applying foreign modal choice of choice of law rules are identified as: uniformity of outcome, increased certainty and associated enforceability of the judgment overseas.
Anthony Gray, 2006
The author argues that the double actionability rule, which has survived in New Zealand, is no longer best suited for choice of law in tort. Instead, the lex loci delicti should be the preferred rule supplemented by a flexible exception. The author undertakes an in-depth analysis of the North American jurisprudence in this area, focusing on the value of the distinction between conduct regulation and loss distribution. He concludes that Australia and New Zealand should adopt similar choice of law rules for torts.
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.
Elsabe Schoeman, 2007
This comment on Harding v Wealands  UKHL 32 addresses two issues in transnational tort litigation: (1) the application of an exception to a general tort choice of law rule, and (2) the role of the substance-procedure dichotomy. The author submits that the substance-procedure distinction is being manipulated to achieve the desired result, while the focus should be on the identification of the appropriate lex causae.
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.
Jack Wass and Maria Hook, 2017
The authors comment upon various aspects of the Private International Law (Choice of Law in Tort) Bill. The Bill abolishes the long-standing double actionability rule governing the choice of law in tort claims in New Zealand. The approach mandated by the Bill is that the New Zealand courts apply the lex loci delicti, with a flexible exception where the case is substantially more closely connected with another country. The authors explain the Bill’s approach and argue that it is sufficiently versatile to cover claims such as defamation and breach of intellectual property rights. The authors suggest that the Bill should exclude the doctrine of renvoi, given that the function of choice of law rules is to identify which country’s law New Zealand courts, not foreign courts, should apply to a particular claim. Finally, the authors recommend that the Bill allow for future common law developments in cases where parties agree as to the law that should apply to tort claims arising within their relationship.