Private International Law in New Zealand

Transcription

1 Private International Law in New Zealand 1. INTRODUCTION What is "private international law"? The sources of New Zealand private international law The scope of this booklet 4 2. WHY BOTHER WITH PRIVATE INTERNATIONAL LAW? 7 3. HOW COURTS DEAL WITH FOREIGN LAW Why do New Zealand courts refer to foreign law? The ascertainment of foreign law Sections 37 to 40 of the Evidence Act Evidence Amendment Act JURISDICTION AND FORUM CONVENIENS WHICH COURT WILL A 13 DISPUTE BE HEARD IN? 4.1 The nature of the issues Acting for a plaintiff who wishes to sue a defendant not resident in New 14 Zealand (a) Service in New Zealand 14 (b) Service under an agreement 16 (c) Service on an attorney or agent 17 (d) Personal service out of the jurisdiction 18 (e) Service out of the jurisdiction without leave High Court Rule (f) Service out of the jurisdiction with leave High Court Rule (g) Substituted service 22 (h) Notice of proceeding for service under High Court Rules 219 or (i) Serving the documents 23 (j) The defendant s response 24 (k) Entry of judgment by default 25 (l) Summary judgment applications 26 (m) Disputes Tribunals proceedings 28 (n) Persons who cannot be sued in New Zealand 28 (o) The importance of thinking about enforcement against foreign defendants Acting for a foreign defendant upon whom New Zealand proceedings have 32 been served (a) Option one do nothing 32 (b) Option two object to New Zealand jurisdiction 33 Objecting to New Zealand jurisdiction where proceedings were served under r Objecting to New Zealand jurisdiction where proceedings were served under r

2 (c) Option three apply for a stay on the grounds of forum non conveniens 40 (d) Option four defend the action in the normal way Acting for a defendant validly served in New Zealand Factors relevant to forum conveniens and forum non conveniens 43 (a) Principles 43 (b) Burden of proof issues Forum clauses 47 (a) Submission to New Zealand jurisdiction 48 (b) Submission to a foreign jurisdiction 49 (c) Clauses relating to forum conveniens Acting for a New Zealand defendant upon whom proceedings in a foreign court have been served (a) Obtaining advice in foreign jurisdiction 50 (b) Injunctions to restrain foreign legal proceedings ENFORCEMENT OF FOREIGN JUDGMENTS The effect of foreign judgments in New Zealand Enforcement of foreign judgments at common law 53 (a) Which foreign judgments are enforceable at common law in New Zealand? 54 (b) Jurisdiction of a foreign court 54 (c) Judgment for a debt, or definite sum of money 55 (d) Judgment not in respect of taxes, fines or penalty 56 (e) Judgment must be final and conclusive 57 (f) Conclusiveness of foreign judgment in New Zealand 57 (g) First defence: judgment obtained by fraud 57 (h) Second defence: enforcement contrary to public policy 60 (i) Third defence: breach of natural justice 60 (j) Recognition of foreign judgments 61 (k) Cause of action does not merge in foreign judgment 62 (l) Procedure for enforcement 63 (m) Limitation period for action on a foreign judgment 64 (n) Judgment in foreign currency Enforcement under statute: the Reciprocal Enforcement of Judgments Act 1934 (a) The legislation 66 (b) Which judgments can be registered under Part I of the 1934 Act? 67 (c) Part IA Orders of Federal Court of Australia under Trade Practices Act (Cth) (d) Applications for registration 70 (e) Effect of registration 73 (f) Applications to set registration aside 74 (g) Recognition of judgments under the 1934 Act Statutory enforcement of Commonwealth judgments to which the 1934 Act

3 does not apply 5.5 Indirect enforcement of foreign judgments INTERIM RELIEF Introduction Interim relief in respect of assets outside New Zealand 85 (a) Interim relief can be granted in respect of assets outside New Zealand 85 (b) Protecting third parties outside New Zealand: the "Babanaft proviso" 87 (c) Limiting the use that may be made of information that is disclosed 88 (d) Disclosure orders where defendant may face criminal charges 88 (e) Interim orders against defendants not resident in New Zealand Disclosure orders against third parties in respect of foreign assets Interim relief in New Zealand in support of foreign proceedings or foreign arbitrations (a) Interim relief in support of foreign proceedings 92 (b) Interim relief in support of foreign arbitrations Enforcing New Zealand interim orders in other countries? OBTAINING EVIDENCE IN CROSS-BORDER LITIGATION Obtaining evidence from outside New Zealand for a New Zealand proceeding 97 (a) Willing witnesses 98 (b) Unwilling witnesses 103 (c) "Trans-Tasman" arrangements 103 (d) Provision of discovery from overseas persons, for New Zealand proceedings Obtaining evidence within New Zealand, for an overseas proceeding 108 (a) Willing witnesses 108 (b) Unwilling witnesses 108 (c) Provision of discovery from New Zealand, for overseas proceedings INTERNATIONAL ARBITRATION The Arbitration Act Stay of New Zealand proceedings Enforcement of foreign awards in New Zealand Enforcement of New Zealand awards overseas The law applicable to the conduct of an arbitration The law to be applied by an arbitrator to the substance of the dispute WHAT LAW WILL THE COURT APPLY? Outline The substance/procedure distinction 121 (a) Contracts Enforcement Act (b) Limitation statutes 122 (c) Presumptions 123 (d) Parties to the action 124 (e) Set-off and counterclaim 124 (f) Damages

4 (g) Types of remedy 124 (h) Priorities Characterisation of issues, and connecting factors 125 (a) Characterisation 125 (b) Connecting factors Exclusion of foreign law Applying New Zealand statutes to cases with foreign elements Renvoi CONTRACT The proper law of a contract 131 (a) What is the "proper law"? 131 (b) Identifying the proper law of a contract Choice of law in contract: selected topics 134 (a) Capacity to contract 134 (b) Formation of a contract 136 (c) Formal validity 136 (d) Essential validity 137 (e) Who can rely on a contract? 137 (f) Interpretation of the contract 137 (g) Obligations under a contract, and their performance 137 (h) Discharge of contracts 138 (i) Illegality 138 (j) Breach of contract 139 (k) Sale of goods: Vienna Convention 140 (l) Moratoria Contracts made online 142 (a) The importance of choice of law clauses 142 (b) Limits on the effect of choice of law clauses TORTS Acts and omissions outside New Zealand Does New Zealand law always apply in relation to acts done in New 147 Zealand? 11.3 Where is a tort committed? Accident compensation STATUTORY CAUSES OF ACTION Action based on a New Zealand statute for a wrong done outside New 151 Zealand 12.2 Action in New Zealand based on a foreign statute RESTITUTIONARY CLAIMS PROPERTY AN OUTLINE Classifying property as movable or immovable Where is property situated? 157

5 14.3 Transfers of movables 159 (a) Tangible movables 159 (b) Intangible movables Transfers of immovables Jurisdiction in relation to immovables DRAFTING CONTRACTS TO TAKE ACCOUNT OF CROSS-BORDER 163 ISSUES 15.1 Choice of law clauses 163 (a) The purpose of a choice of law clause 163 (b) Draft choice of law clause 164 (c) Variations Forum clauses 165 (a) The purpose of a forum clause 165 (b) Draft non-exclusive jurisdiction clauses 166 (c) Variations on non-exclusive jurisdiction clauses 167 (d) Draft exclusive jurisdiction clauses Agents for service 169 (a) The purpose of an agent for service clause 169 (b) Draft agent for service clause 170 (c) Variations on agent for service clauses Arbitration clauses 172 (a) General issues 172 (b) Draft arbitration clause Incorporating clauses in online contracts 174 (a) Making incorporation of clauses effective 174 (b) Other issues 175 (c) Managing the risks of contracting online 176 APPENDIX 1 NEW ZEALAND CASES RELEVANT TO THE SCOPE OF RULE HIGH COURT RULES APPENDIX 2 COUNTRIES TO WHICH THE RECIPROCAL ENFORCEMENT 183 OF JUDGMENTS ACT 1934 EXTENDS APPENDIX 3 EXAMPLES FOR DISCUSSION: CHOICE OF LAW, FORUM AND AGENT FOR SERVICE CLAUSES 187 DISCUSSION PROBLEMS 195