Private International Law (Choice of Law in Tort) Bill

Private International Law (Choice of Law in Tort) Bill

Member’s Bill

181—1

Explanatory note

General policy statement

Choice of law is a procedural stage in the litigation of a case involving the conflict of laws when it is necessary to resolve the differences between the laws of different legal jurisdictions.

The presumptive choice of law rule for tort is that the proper law applies. This is the law that has the greatest relevance to the issues involved. Often this is likely to be the law of the jurisdiction where the events constituting the tort occur.

This Bill clarifies which jurisdiction’s law is applicable in actions of tort and provides guidance to the courts on matters of characterisation. This Bill also abolishes certain common law rules dealing with actionability and sets out the general rule that the applicable law will be the law of the jurisdiction in which the events constituting the tort in question occur.

Clause by clause analysis

Clause 1 is the Title clause.

Clause 2 is the commencement clause. The Bill comes into force on the day after the date on which it receives the Royal assent.

Clause 3 provides that the purpose of the Bill is to establish rules for choosing the law to be used for determining issues relating to tort.

Clause 4 provides that the Bill binds the Crown.

Clause 5 states the general principles relating to the applicable law for the purposes of private international law. These are—

  • the characterisation of issues arising in a claim as issues relating to tort is a matter for the courts;

  • the applicable law is to be used for determining the issues arising in a claim, including the question of whether an actionable tort has occurred; and

  • the applicable law to be used for determining the issues arising in a claim excludes any choice of law rules forming part of the law of the jurisdiction or jurisdictions.

Clause 6 abolishes several common law rules that relate to the applicable law for the purposes of private international law as they apply to any claim in tort. These are—

  • the requirement of actionability being present under both New Zealand law and the law of another jurisdiction when determining whether a tort is actionable; and

  • allowing (as an exception from the rules falling within the above paragraph) for the law of a single jurisdiction to be applied when determining whether a tort is actionable.

Clause 7 provides that the general rule for determining the applicable law for the purposes of private international law is the law of the jurisdiction in which the events constituting the tort in question occur. Where elements for those events occur in different jurisdictions, the general rule is taken as being—

  • for a cause of action in respect of damage to property, the law of the jurisdiction where the property was when it was damaged; and

  • in any other case, the law of the jurisdiction in which the most significant element or elements of those events occurred.

Clause 8 provides for situations where the general rule is displaced.

Clause 9 states the transitional provisions and savings of the Bill.

David Bennett

Private International Law (Choice of Law in Tort) Bill

Member’s Bill

181—1

The Parliament of New Zealand enacts as follows:

1 Title

This Act is the Private International Law (Choice of Law in Tort) Act 2016.

2 Commencement

This Act comes into force on the day after the date on which it receives the Royal assent.

3 Purpose

The purpose of this Act is to establish rules for choosing the law to be used for determining issues relating to tort (the applicable law).

4 Act binds the Crown

This Act binds the Crown.

5 General principles

(1)

For the purposes of private international law, the characterisation of issues arising in a claim as issues relating to tort is a matter for the courts.

(2)

The applicable law is to be used for determining the issues arising in a claim, including the question of whether an actionable tort has occurred.

(3)

The applicable law to be used for determining the issues arising in a claim excludes any choice of law rules forming part of the law of the jurisdiction or jurisdictions concerned.

6 Abolition of certain common law rules

The rules of the common law, insofar as they—

(a)

require actionability under both New Zealand law and the law of another jurisdiction, for the purpose of determining whether a tort is actionable; or

(b)

allow (as an exception from the rules falling within paragraph (a)) for the law of a single jurisdiction to be applied for the purposes of determining the issues, or any of the issues, arising in the case in question—

are hereby abolished so far as they apply to any claim in tort.

7 General rule

(1)

The general rule is that the applicable law is the law of the jurisdiction in which the events constituting the tort in question occur.

(2)

Where elements for those events occur in different jurisdictions, the applicable law under the general rule is taken as being—

(a)

for a cause of action in respect of damage to property, the law of the jurisdiction where the property was when it was damaged; and

(b)

in any other case, the law of the jurisdiction in which the most significant element or elements of those events occurred.

8 Displacement of general rule

(1)

If it appears, in all the circumstances, from a comparison of—

(a)

the significance of the factors that connect a tort with the jurisdiction whose law would be the applicable law under the general rule; and

(b)

the significance of any factors connecting the tort with another jurisdiction—

that it is substantially more appropriate for the applicable law for determining the issues arising in the case, or any of those issues, to be the law of the other jurisdiction, the general rule is displaced and the applicable law for determining those issues or that issue (as the case may be) is the law of that other jurisdiction.

(2)

The factors that may be taken into account as connecting a tort with a jurisdiction for the purposes of this section include, but are not limited to, factors relating to—

(a)

the parties; or

(b)

any of the events that constitute the tort in question; or

(c)

any of the circumstances or consequences of those events.

9 Transitional provision and savings

(1)

Nothing in this Act applies to acts or omissions that give rise to a claim before the commencement of this Act.

(2)

Nothing in this Act affects any rule of law (including rules of private international law) except those abolished by section 6.

(3)

Without limiting the generality of subsection (2), nothing in this Act—

(a)

authorises the application of the law of a jurisdiction outside New Zealand as the applicable law for determining issues arising in any claim insofar as to do so—

(i)

would conflict with principles of public policy; or

(ii)

would give effect to such a penal, revenue, or other public law as would not otherwise be enforceable under the law of New Zealand; or

(b)

affects any rules of evidence, pleading, or practice or authorises questions of procedure in any proceedings to be determined otherwise than in accordance with the law of New Zealand.

(4)

This Act has effect without prejudice to the operation of any rule of law that either—

(a)

has effect notwithstanding the rules of private international law applicable in the particular circumstances; or

(b)

modifies the rules of private international law that would otherwise be so applicable.