Accessibility Skip to Global Navigation Skip to Local Navigation Skip to Content Skip to Search Skip to Site Map

Articles for the keyword(s) "Substance-procedure dichotomy"

"Conflict of Laws and Vessel Ownership"

Paul Myburgh, 2005

In a comment on Tisand (Pty) Ltd v The Owners of the Ship MV Cape Moreton (ex Freya) [2005] FCAFC 68, 29 April 2005, the author analyses the approach of the Court to the issue of foreign vessel ownership within the context of admiralty jurisdiction. The Court characterised the issue as relating to the transfer of property rights and subject to the lex situs, rather than a jurisdictional matter subject to the lex fori. The author supports the Court’s rejection of the lex fori approach and welcomes the Court’s sophisticated analysis of the conflicts issues involved.

^ Top of page

"The New Zealand Accident Compensation Scheme: The Statutory Bar and the Conflict of Laws"

Elsabe Schoeman and Rosemary Tobin, 2005

The authors examine the nature and effect of the statutory bar on compensatory damages in the Injury Prevention, Rehabilitation, and Compensation Act 2001 within the context of the double actionability rule for transnational torts. The focus is on the aims of the Accident Compensation Scheme and the implications of characterising the statutory bar as either substantive or procedural. With reference to recent developments in regard to the characterisation of comparable rules restricting or barring the recovery of damages, the authors support a substantive characterisation.

^ Top of page

"Choice of Law in Equitable Wrongs: A Comparative Analysis"

Laurette Barnard, 1992

This article presents a comprehensive and in-depth comparative analysis of characterisation and choice of law in relation to equitable wrongs in English, Australian, Canadian and New Zealand law. The author proposes a flexible choice of law regime, based on the proper law of the claim, which should be determined with reference to the essential nature of equitable obligations and the policies operating in the field of fiduciary and related duties. Since the gaining of access to the beneficiary’s assets is the origin of the equitable obligation, the law under which access was gained should, subject to exceptions, constitute the proper law.

^ Top of page

"A Holiday in New Zealand: The Implications of New Zealand’s Accident Compensation Scheme"

Elsabe Schoeman and Rosemary Tobin, 2005

This note illustrates the application of the Injury, Prevention, Rehabilitation and Compensation Act 2001 to a personal injury claim in the hypothetical case of a foreign (German) student who was injured in New Zealand and institutes proceedings in a German court. The focus is on the statutory bar in respect of compensatory damages and the characterisation of the bar as either substantive or procedural.

^ Top of page

“Cox v Ergo Versicherung AG: Statutory Packages in Transnational Personal Injury Cases”

Elsabe Schoeman, 2015

The assessment of damages in transnational personal injury claims poses a unique challenge for private international law theory and practice. Traditionally viewed as a procedural matter, there are strong reasons for the assessment of damages to be recognised as an integral part of a personal injury statutory package to be governed by the lex causae of the tort. This article questions the characterisation of the assessment of damages as substantive or procedural to determine which law governs such assessment, arguing that Etherton LJ’s approach, focusing on the causal connection between liability and loss, may provide a better approach to statutory packages.

^ Top of page

“Rome II and the Substance-Procedure Dichotomy: Crossing the Rubicon”

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.

^ Top of page

"The Judicial Process in the Conflict of Laws"

BD Inglis, 1958

With reference to English case law and English text-writers, the author analyses the foreign court-theory in respect of renvoi, arguing in favour of its application and dealing with criticism leveled against it. The author also discusses the problem of classification, concluding that all conflicts issues are governed by English domestic law, except those that are referred to foreign law by choice of law rules. Once so referred, there is no need to classify the foreign law rules; whether a particular foreign law rule applies, depends on whether it answers the question referred to it by English law.

^ Top of page

"Copyright Infringement in New Zealand Law"

Graeme W Austin, 2000

This article addresses the territoriality of copyright laws in the context of jurisdiction and choice of law. The traditional obstacles to the justiciability of foreign copyright claims in New Zealand, namely the local action jurisdiction rule in regard to foreign immovables and the double actionability tort choice of law rule, are considered in the light of recent developments in the USA, Canada, Australia and the UK. The author concludes that flexibility introduced by Peace v Ove Arup [1999] 1 All ER 769 (CA) may pave the way for New Zealand courts to assume jurisdiction in foreign copyright infringement disputes.

^ Top of page

"Harding v Wealands: Substance v Procedure in the English Courts"

Elsabe Schoeman, 2007

This comment on Harding v Wealands [2006] 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.

^ Top of page

“Conflict of Laws”

Elsabe Schoeman, 2013

This review of New Zealand cases and other developments covers the first series of cases dealing with the new High Court Rules, which came into operation on 1 February 2009. The review also covers the new Limitation Act 2010 and the Trans-Tasman Proceedings Act 2010, as well as a new case on the jurisdiction of a New Zealand court in respect of the infringement of a foreign (US)-registered patent.

^ Top of page

"A View from Australia's Regional Partners - Recent Developments in New Zealand and Singapore"

Elsabe Schoeman and Adeline Chong, 2014

The authors consider recent conflict of laws developments in New Zealand and Singapore. The review of New Zealand developments covers the first series of cases dealing with the new High Court Rules, which came into operation on 1 February 2009. The review also covers the new Limitation Act 2010 and the Trans-Tasman Proceedings Act 2010, as well as a new case on the jurisdiction of a New Zealand court in respect of the infringement of a foreign (US)-registered patent.