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.
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.
Anthony Gray, 2008
The distinction between substance and procedure is fundamental to private international law. However, in recent years, most Commonwealth courts have made their own statements regarding this dichotomy, and there seems to be no agreement on the demarcation between substance and procedure. Based on a survey of decisions in Australia, England, Canada and South Africa, as well as an analysis of the underlying rationale for the distinction, the author argues in favour of the adoption of a narrow view of procedure in regard to the assessment of damages.
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, 2011
The Rome II Regulation deals with choice of law in tort. The article examines the value of this Regulation vis-à-vis third (non-EU Anglo-Common law) countries, analysing the unique EU environment and the continuous movement towards uniformity and certainty. The author discusses the general choice of law regime laid down in Article 4 of the Regulation and applies it to two famous Anglo-Common law cases: Neilson v Overseas Projects Corporation of Victoria Ltd and Harding v Wealands, concluding that these cases would probably have been decided differently under Rome II. The article concludes that Rome II may indeed have comparative value for these third countries and that its importance should not be underestimated.
PRH Webb, 1979
This note provides a brief survey of conflict of laws issues in relation to three New Zealand contract statutes (Illegal Contracts Act 1970, Contractual Mistakes Act 1977, Contractual Remedies Act 1979). The author laments the failure of the Legislature to consider conflict of laws implications when drafting these statutes, which has resulted in uncertainty regarding their territorial scope and intended application, especially when these statutes have to be considered by foreign courts.
Maya Mandery, 2013
This article discusses the new analytical framework on assumption of jurisdiction in tort actions involving foreign defendants set by the Supreme Court of Canada in the three cases: Club Resorts Ltd v Van Breda 2012 SCC 17,  1 SCR 572; Editions Ecosociete Inc v Banro Corp 2012 SCC 18,  1 SCR 636 and Breeden v Black 2012 SCC 19,  1 SCR 666. The framework ensures that courts will have presumptive jurisdiction over multi-jurisdictional disputes concerning tort claims in cases where the tort was committed within the province. The clear separation and identification of the factors relevant for both the existence of jurisdiction over tort claims and the inquiry into the discretionary exercise of jurisdiction, provides useful comparative perspectives for New Zealand courts when dealing with multiple-jurisdictional tort claims.
Maria Hook, 2018
This article examines the changes brought about by the Private International Law (Choice of Law in Tort) Act 2017 and identifies areas for future development.