JW Davies and BD Inglis, 1957
The authors critically analyse certain provisions of the Royal Commission's Draft Code on Jurisdiction and Recognition (UK, annexed to the Report of the Royal Commission on Marriage and Divorce (1951-1955)) in the light of the New Zealand law governing jurisdiction in divorce cases, as well as the recognition of foreign divorce and nullity decrees. They conclude that, although the Draft Code contains valuable recommendations, New Zealand statutory reform has been progressive and already addresses most of the points raised by the Commission.
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.
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.
"Renvoi: Throwing (and Catching) the Boomerang – Neilson v Overseas Projects Corporation of Victoria Ltd"
Elsabe Schoeman, 2006
The author examines the decision in Neilson v Overseas Projects Corporation of Victoria Ltd  HCA 54 with specific reference to the application of renvoi in transnational tort litigation and the application of a (foreign) flexible exception to the lex loci delicti. In regard to both of these matters, the case presented unique problems as a result of inadequate proof of the foreign (Chinese) law concerned. The author submits that renvoi and (foreign) exceptions are not appropriate ways of dealing with a rigid forum choice of law rule for tort.
Elsabe Schoeman, 2010
The article examines the approach adopted in Rome II towards the substance-procedure distinction and signposts its potential significance for contemporary conflicts theory from an Anglo-Common Law perspective. The Rome II approach is regarded to be generally different from the one found under the common law. This is evident from a far broader category of matters assigned to the applicable law and a corresponding narrower category of matters governed by the lex fori. The author urges Anglo-Common Law jurisdictions to pay closer attention to Rome II and use it to re-evaluate their own positions in regard to the distinction between substance and procedure.
CF Forsyth, 1977
The author highlights certain changes brought about by the New Zealand Domicile Act 1976, most notably the abolition of the wife’s domicile of dependence, new provisions in respect of the domicile of children and the abolition of the revival of the domicile of origin. Although there may be choice of law problems where spouses have different domiciles, the conclusion is that South African law could benefit from similar reforms.
JW Davies and BD Inglis, 1957
The authors critically analyse certain provisions of the Royal Commission’s Draft Code on Jurisdiction and Recognition (UK, annexed to the Report of the Royal Commission on Marriage and Divorce (1951-1955)) in the light of the New Zealand law governing jurisdiction in divorce cases, as well as the recognition of foreign divorce and nullity decrees. They conclude that, although the Draft Code contains valuable recommendations, New Zealand statutory reform has been progressive and already addresses most of the points raised by the Commission.
Rina See, 2012
This article provides an in depth analysis of the renvoi doctrine and its potential application in New Zealand. The author argues that the doctrine is best used where it promotes the purpose of the relevant choice of law rule. The doctrine’s possible scope and application is examined against the choice of law rules of several areas of law as they apply in New Zealand. The decision in Neilson v Overseas Projects Corporation of Victoria Ltd is then situated within the context of that broader discussion.
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.