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

"New Zealand Accident Compensation and the Foreign Plaintiff: Some Conflict of Laws Problems"

Giora Shapira, 1980

The author looks at the implications of the New Zealand Accident Compensation Scheme for foreign plaintiffs, and the inadequacy of recovery, within the context of the double actionability rule for tort. The challenge for tort choice of law is to secure a proper remedy for the foreign plaintiff, while protecting local defendants against tort liability. Since the double actionability rule cannot achieve this, the author explores the “proper law of the tort” doctrine as applied in US case law concerning workmen’s compensation statutes.

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"A Traffic Accident Abroad"

EH Flitton and PRH Webb, 1968

The authors note that, at the time, there had not been a single conflict of laws torts case in any of the higher courts in New Zealand. Against this background, they analyse the House of Lords decision in Boys v Chaplin [1968] 1 All ER 283, pointing to the diversity of thinking that makes this case difficult to apply. The focus is on the general rule of double actionability and the proper law exception, as interpreted in relevant cases leading up to Boys v Chaplin.

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"Jurisdiction and Choice of Law in Tort"

Craig Brown, 1976

The author examines the confusion caused by the double-limbed tort conflict rule (Phillips v Eyre (1870) LR 6 QB 1) in regard to jurisdiction and choice of law, as well as the significance of the "proper law of the tort" exception (Boys v Chaplin [1968] 2 QB 1). While emphasising the distinction between jurisdiction and choice of law, the author points to the interaction between jurisdiction and choice of law in order to find the appropriate forum as well as the appropriate lex causae for cross-border tort disputes. The jurisdictional doctrine of forum conveniens (where leave to serve abroad is required) and the "proper law of the tort" for choice of law purposes may provide the required degree of flexibility in tort choice of law.

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"Double Actionability and the Choice of Law"

Nicky Richardson, 2002

The double actionability rule is the New Zealand tort choice of law rule. This article explains what the “double actionability” requirements are, and how they have been applied by the House of Lords and the Privy Council. The author spends considerable time discussing the House of Lords decision in Kuwait Airways Corporation v Iraqi Airways Company, pointing out that this case raises more problems than it solves. The author concludes that the double actionability rule did not produce any unjust results prior to the Kuwait case and should therefore be retained as the New Zealand conflict rule.

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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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"Tortious Liability and Conflicts"

Nicky Richardson, 2003

This case note on Kuwait Airways Corp v Iraqi Airways Co [2002] 3 All ER 209 (HL) highlights the complexities and uncertainty of the double actionability rule for tort. The application of the public policy exclusion to an expropriatory resolution (which was in breach of public international law rules) presented a unique challenge. The author suggests reform similar to the English Private International Law (Miscellaneous Provisions) Act 1995.

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“Conflict of Laws International Torts Cases: The Need for Reform on Both Sides of the Tasman”

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.

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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.

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"Reform of Choice of Law Rules for Tort"

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.