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Articles for the keyword(s) "Public policy"

"New Zealand Conflict of Laws – A Bird’s Eye View"

FM Auburn and PRH Webb, 1977

In this section of an overview of New Zealand Conflict of Laws, the impact of the Accident Compensation Scheme on transnational tort litigation is considered. The authors discuss the interpretation and application of the double actionability rule for tort within the context of the bar on proceedings for damages in terms of the Accident Compensation Act 1972, with specific reference to the problem of foreigners’ loss of earnings.

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"Conflict of Laws"

RJ Paterson, 1992

In an overview of developments in Conflict of Laws (1990-1992), the author notes Apple Computer Inc v Apple Corps SA [1990] 2 NZLR 598, which confirms the rule that a contract, whether lawful in terms of the proper law of the contract or not, will be invalid in so far as performance is unlawful under the lex loci solutionis.

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"Conflict of Laws and Legal Aid"

PRH Webb, 1974

This is a brief comment on Connor v Connor [1974] 1 NZLR 632, focusing on the rule that a court will not enforce foreign revenue or other public laws. The author endorses the decision of the Court that a foreign legal aid scheme does not fall under the category of foreign revenue laws.

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"A Proposal to Improve the Protection of New Zealand’s Movable Cultural Heritage by Means of a Statutory Trust"

Jonathan Keate, 1993

This article examines and evaluates the effectiveness of the Protection of Movable Cultural Heritage Bill, focusing on the recovery of illegally exported cultural property with reference to the private international law principles of unenforceability of foreign penal and other public laws. The author proposes the creation of a statutory trust, which would accord with charitable trust principles, as a more effective means to recover illegally exported cultural objects through proceedings in overseas courts.

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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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"Lex Mercatoria: Can General Principles of Law Govern International Commercial Contracts?"

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.

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"Lorentzen v Lydden: Dead and Buried?"

Elsabe Schoeman, 2004

In Peer International Corp v Termidor Music Publishers Ltd [2004] 2 WLR 849 the English Court of Appeal applied the lex situs rule to deny extraterritorial effect to a foreign governmental act (Cuban Law 860) in regard to (English-owned) copyright. Although this decision has effectively overruled Lorentzen v Lydden & Co Ltd [1942] 2 KB 202, the author points out that reference was made to the nature of the decree (confiscatory or not), which should not have been a relevant consideration on the facts of the case.

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"Matrimonial Property and the Conflict of Laws"

Campbell McLachlan, 1986

The author examines provisions in the Matrimonial Property Act 1976 applicable to conflicts issues upon dissolution of marriage through separation with specific reference to: the international diversity of matrimonial property regimes; the scope of the Act in relation to movable and foreign immovable property; the uncertainty pervading common law conflict rules and their potential applicability to property falling outside the scope of the Act; and ante-nuptial agreements. The article highlights the tension between domestic policies and foreign law in transnational matrimonial property disputes.

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"Rationalising Contract Choice of Law Rules"

Peter Kincaid, 1993

This article focuses on the proper law of the contract with reference to the freedom of parties to choose the governing law, as well as determining the governing law in the absence of a choice by the parties. The author distinguishes between domestic and foreign contracts, the latter excluding all contracts that impinge on New Zealand society on the basis that the characteristic performer habitually resides in New Zealand. Taking the view that contract choice of law should reflect primarily the interests of the parties, with the forum’s public interests playing a secondary role only, the author explores limitations, such as mandatory laws and public policy, on the application of the designated proper law.

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"The Hague and the Ditch: The Trans-Tasman Judicial Area and the Choice of Court Convention"

Reid Mortensen, 2009

Following an analysis of the history and current context of the proposed Trans-Tasman regime (within the CER framework), this article explores the comparative value of the Hague Convention on Choice of Court Agreements for Australia and New Zealand. Although the Convention and the proposed Trans-Tasman regime are profoundly different, the author concludes that the adoption of the Convention would provide an opportunity for both countries to increase certainty in international trade and commercial relationships. More specifically, reference to the Convention would address the risk of lis pendens and incompatible judgments in the proposed Trans-Tasman regime.

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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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"Stolen Property in the Conflict of Laws"

DW Rowe, 1980

In a discussion of the decision in Winkworth v Christie, Manson & Woods Ltd [1980] 1All ER 1121, the author questions the commitment of Anglo-Common law to the lex situs as the primary legal system governing transfer of movables and its effect on proprietary rights. In view of the different results that this may produce in relation to stolen goods, depending on whether the lex situs adheres to the nemo dat quod non habet principle or not, it is suggested that a distinction could be drawn, for instance, between consensual transactions (where the original owner is party to the transfer) and claims to over-reaching interests (where the original owner is not involved).

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"The Trend towards Recognition of Polygamous Marriages in Common Law Countries and Matters Incidental Thereto"

A Hiller, 1963

This article traces the history of the recognition of polygamous marriages in regard to legitimacy of children and succession to property with reference to English law. The author also explores the attitude of the English courts towards the recognition of the dissolution of polygamous marriages through non-judicial forms of divorce. Finally, the article examines the character and definition of polygamous marriages with reference to English, New Zealand, Canadian and United States case law.

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"New Zealand Conflict of Laws – A Bird’s Eye View"

FM Auburn and PRH Webb, 1978

In this section of an overview of New Zealand Conflict of Laws, the impact of the Accident Compensation Scheme on transnational tort litigation is considered. The authors discuss the interpretation and application of the double actionability rule for tort within the context of the bar on proceedings for damages in terms of the Accident Compensation Act 1972, with specific reference to the problem of foreigners’ loss of earnings.

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"Judgments Extension under CER"

Reid Mortensen, 1999

This article discusses the Closer Economic Relations (CER) Trade Agreement entered into between New Zealand and Australia in 1983 with specific reference to the removal of legal impediments to trade. The author criticises the CER scheme as it does little to improve the efficiency in respect of trans-Tasman judgment extensions. An in-depth analysis follows into alternative mechanisms available for judgment enforcement, with specific reference to the European and Australian models. The author concludes with proposals for the adoption of a “direct jurisdiction” model for the CER scheme.

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"From Savigny to Cyberspace: Does the Internet Sound the Death-Knell for the Conflict of Laws?"

Campbell McLachlan, 2006

This article examines the challenges posed by the internet for classic conflicts theory and method in regard to cross-border communications with specific reference to defamation, privacy and copyright. A detailed comparative survey refers extensively to law reform initiatives and jurisprudential developments in a number of Anglo-Commonwealth countries, as well as Europe. The author explores the dynamics of the interplay between jurisdiction and choice of law and its effect on the traditional principle of territoriality within the context of cross-border communications disputes.

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"Good Faith in Conflict(s): The International Commercial Contract Dimension"

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.

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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 Australia and New Zealand Judgments Scheme: A Common Law Judicial Area”

Oliver L Knöfel and Reid G Mortensen, 2011

This article provides a comprehensive background to the enactment of the trans-Tasman Proceedings Acts in both Australia and New Zealand within the context of the Closer Economic Relations Trade Agreement (1983) between the two countries. It also provides a comparative perspective on the trans-Tasman vis-à-vis European Union, other European and Hague Conference arrangements in the area of cross-border jurisdiction and judgments. Discussing the details of the new trans-Tasman scheme, the authors identify a number of potential obstacles, one of those being the very different accident compensation schemes obtaining in New Zealand and Australia. On the whole, however, the scheme promises to be most successful in the regulation of trans-Tasman jurisdiction and judgments.

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"The Employment Relations Act and its effect on contracts governed by foreign law"

Maria Hook and Jack Wass, 2017

The authors analyse and critique the Court of Appeal's decision in New Zealand Basing Ltd v Brown [2016] NZCA 525, [2017] 2 NZLR 93. The issue in this case was whether New Zealand-based pilots could seek relief under the Employment Relations Act 2000 in relation to impending dismissal by their Hong Kong-based employer. The employment contracts were expressly governed by the law of Hong Kong.