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This book is only available in PDF format
Author(s): Helen McQueen, David Goddard
Published: 4 December, 2001
Pages: 196
   

Transactions and people cross borders with ever greater frequency. The Internet (along with other developments in information and communications technology) has made it simpler and less expensive than ever before to communicate across borders, and to deal with people anywhere in the world. Global trade continues to grow, and international air travel has increased dramatically in the last decade. As the practical importance of borders diminishes, it is increasingly common for lawyers to encounter transactions, relationships and disputes that have connections with more than one country. These cross-border situations raise special issues which are not encountered in a purely domestic context. New Zealand lawyers need to have at their disposal the legal tools required to address these cross-border issues.

Private international law, or “conflict of laws” as the subject is also known, is the body of law concerned with the issues which arise where transactions, relationships or disputes have connections with more than one country. The subject is concerned with topics as diverse as the jurisdiction in which billion dollar financing agreements may be enforced, the risks facing an Internet service provider (“ISP”) in relation to untrue statements on a website that it hosts that can be accessed from anywhere in the world, and trying to enforce a New South Wales District Court judgment against a judgment debtor living in New Zealand.

Where a transaction or relationship or dispute has links with more than one country, the special issues which need to be addressed include:
(a) Where will any dispute be determined?
(b) Which country’s law will be applied to determine issues that arise in the course of the dispute?
(c) Is effective interim relief available, pending trial? To what extent can interim orders made in one country be effective in relation to persons or assets outside that country? Will courts in country A grant interim relief in support of proceedings in country B?
(d) How can evidence be obtained from a person in country A for use in a trial in country B? Can documents in country A, or which are controlled by a person in country A, be obtained on discovery in connection with proceedings in country B?
(e) If a judgment is given or an order is made in a court in country A, what is the effect of that judgment or order in country B?

The rubric “private international law” does not refer to a body of international rules which are the same in every country. The domestic law of each country contains rules which determine how the questions set out above will be answered in the courts of that country. Private international law varies from country to country. But there are substantial similarities between the private international law rules of common law countries, and the development of the common law in this field has been strongly influenced by civil law concepts. The development of New Zealand’s private international law, like that of many other countries, also reflects the existence of a number of important international agreements and coordination initiatives in relation to aspects of private international law, which have achieved a degree of consistency among some countries on certain issues.

New Zealand’s private international law seeks to answer the questions set out above where they fall to be resolved by a New Zealand court. For the purposes of a study of New Zealand private international law, the questions can be recast as follows:
(a) Will a particular dispute be decided by a New Zealand court?
(b) Which country’s law will be applied by a New Zealand court when determining issues that arise in the dispute?
(c) What interim relief will a New Zealand court grant in respect of persons or assets outside New Zealand? Will a New Zealand court grant interim relief in support of foreign proceedings – and if so, in what circumstances?
(d) When can a New Zealand court accept evidence from a person outside New Zealand? What can be done to compel the production of documents outside New Zealand, or the provision of evidence by a person outside New Zealand? Will a New Zealand court assist in the taking of evidence for use in foreign proceedings? Will a New Zealand court provide assistance in connection with discovery of documents in New Zealand, for the purpose of foreign proceedings?
(e) What is the effect in New Zealand of a judgment or order of a foreign court?

The first of these issues is the question of jurisdiction. Where a dispute arises in an international context, with parties resident in different jurisdictions, and performance possibly to take place in yet another jurisdiction, it is important to know which court is likely to determine the dispute. New Zealand private international law determines when a New Zealand court has jurisdiction to determine a dispute, and also the circumstances in which a New Zealand court may decline to exercise its jurisdiction because a dispute should be determined in another court that is also able to hear the case. New Zealand private international law is also concerned with the issues that arise in New Zealand proceedings where the same dispute is the subject of concurrent proceedings in another country.

If a New Zealand court does have jurisdiction to hear a dispute, it then has to decide which country’s law will determine the various issues that arise. This is the question of choice of law. There is no separate set of substantive rules which apply in international cases: the choice of law rules of “private international law” are rules of New Zealand law which enable a New Zealand court to determine which system of law should be used to resolve a particular issue before a New Zealand court. The system of law which is applied to determine each substantive issue must be a system of law in force either in New Zealand or in another country.

It cannot be emphasised too strongly that the question of jurisdiction is quite independent of the question of which law applies. New Zealand courts can, and do, decide cases in which issues are governed by foreign law.

The question of interim relief is of great practical importance in many cross-border cases. A number of special issues arise where interim relief is sought in New Zealand proceedings against a person outside New Zealand, or in relation to assets or information held outside New Zealand. And New Zealand courts are increasingly being asked to make interim orders in support of the determination of substantive proceedings before a foreign court.

Cross-border disputes can raise difficult practical questions in relation to evidence and discovery across borders. These evidence issues are less common than questions of jurisdiction or interim relief, but are of increasing importance with the growth in volume of litigation involving foreign parties and witnesses, and New Zealand businesses which operate in more than one country.

The fifth key private international law issue which concerns New Zealand lawyers is the enforcement and recognition in New Zealand of judgments and orders of foreign courts. It is increasingly common for a judgment given overseas to be brought to New Zealand for enforcement against a New Zealand resident or a New Zealand business, or against a foreign defendant’s assets in New Zealand.

Similar issues also arise in connection with arbitrations involving parties, witnesses, events or assets in more than one country. For example, a court in New Zealand may be asked to stay proceedings in favour of arbitration in another country, or to grant interim relief in support of a foreign arbitration, or to assist in taking evidence in support of a foreign arbitration, or to enforce an award made overseas.

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