Introductory Lecture – International Litigation & Private International Law

Course Overview & Instructors

  • Paper code & name: LAWS 375375 – International Litigation & Private International Law (formerly “International Litigation”)
  • Enrolment roughly doubled from last year – the new title “Private International Law” clearly sparked interest.
  • Lead lecturers:
    • Jack Wass – Wellington barrister, VUW graduate, co-author (with Maria Hook) of the leading NZ text on PIL.
    • Hon. Chris Finlayson KC – former Attorney-General; long-time PIL enthusiast who studied the subject in 19781978. Describes himself as a “fossil” and Bill Atkin as a “super-fossil.”
  • Teaching pattern: Jack covers the opening weeks; Chris teaches the middle block (e.g., forum conveniens on 2121 March when Jack is overseas).

Why Study Private International Law?

  • Real-world impact: Determines how private & public law disputes are managed when more than one country is involved.
  • Practical utility for:
    • cross-border commerce, IP & shipping
    • international family law
    • government policy roles facing transnational issues
  • Intellectual value:
    • Forces rigor in problem structure & legal analysis – students must decide which court, which law and what effect foreign proceedings have.
    • Builds transferable skills in analytical clarity and comparative reasoning.

Signature Case – Motunui Epa / Attorney-General (NZ) v Ortiz

  • Carved Motunui epa panels illegally removed from Taranaki and placed in a London auction house.
  • Despite NZ legislation aimed at preventing export of taonga, the House of Lords held NZ had no claim to recover them – illustrates how PIL rules (jurisdiction, choice of law, statutory interpretation) can thwart policy goals.
  • Panels are now displayed in Puke Ariki; the back-story will be revisited when the class studies the case later (Chris will add the Treaty-settlement dimension).

Anecdotes & Professional Highlights from Chris Finlayson

  • Has appeared in numerous PIL-rich matters: acting for Hungary, for the Governor of Pitcairn, the SHC Corp v O’Brien judgment-enforcement saga (Virginia→Massachusetts→NZ), etc.
  • Self-deprecating humour: he read Jack’s textbook in bed on a Friday night; lambasts delayed Air NZ flights; quips students in other electives will experience “FOMO.”

Learning Outcomes & Skill Development

  • By course end students should be able to:
    • Identify and describe the four PIL pillars (jurisdiction, choice of law, recognition/enforcement, international procedure).
    • Apply NZ statutory & common-law tests to cross-border disputes.
    • Critically evaluate policy rationales (party expectations, justice/convenience, comity, sovereignty).
    • Draft advice on multi-jurisdictional fact patterns with structured reasoning.

Course Logistics

  • Weekly pattern
    • Tuesday – traditional lecture (recorded).
    • Friday (2 hrs) – mixed format: mini-lecture + small-group discussions based on a pre-circulated exercise. Recordings will not capture group work.
  • Participation – 10%10\% of final mark.
    • Not penalised for an occasional absence.
    • Can earn credit by in-class contribution or submitting answers to the weekly exercise when unable to attend.
  • Terms opinion (problem question) due just before the mid-trimester break.
  • Final exam
    • Open-book hard-copy only (no online material because of AI integrity rules – an “assured assessment”).
    • Mix of multi-choice & written questions. Written section may be typed, but no internet access.
  • Readings
    • Minimal: usually 1–21–2 cases per class.
    • Intro chapter from an Australian PIL text for Week 11; a single case (Schumacher v Summer Grove Estates) for Friday.
    • Wass & Hook text recommended, not required: copies on Closed Reserve; Jack will upload essential chapters to Nuku if needed.
  • Class representative – volunteers to email Jack.
  • Lectures recorded (light stays on!), but attendance vital to benefit from interaction.

Definition & Scope of Private International Law (PIL)

  • Governs private relations crossing national borders (contracts, torts, succession, family, property).
  • Also touches some public-law issues (e.g., sovereign immunity).
  • Distinct from Public International Law (state-to-state rules). Each country therefore has its own PIL regime, though traditions & treaties generate convergence.

Three Broad Legal Strategies for Cross-Border Problems

  1. Apply domestic law regardless (parochialism – often inadequate).
  2. Substantive harmonisation – states adopt identical rules (e.g., CISG for sale of goods; maritime treaties).
  3. Conflict-of-laws rules – procedural framework telling courts how to decide jurisdiction, choice of law & effect of foreign judgments. This course studies strategy 33.

The Four Core Functions / Chapters

  1. Jurisdiction – When can & should a NZ court hear the dispute? Distinguish:
    • Existence of jurisdiction (power).
    • Forum conveniens / non conveniens (discretion).
    • Example extremes:
      • German claimant v French defendant re French car: NZ lacks jurisdiction.
      • German claimant v NZ vendor re vintage Mercedes: NZ has jurisdiction, but might stay on grounds of inconvenience.
  2. Choice of Law – Which substantive legal system governs the issue? e.g., Contract may be governed by NZ law, German law, or a chosen English law clause.
  3. Recognition & Enforcement of Foreign Judgments – When and how NZ courts give effect to foreign decisions (not automatic).
  4. International Civil Procedure / Ancillary Measures – Practical mechanics such as:
    • Obtaining evidence of foreign law.
    • Interim relief (e.g., freezing orders—formerly Mareva injunctions).

Illustrative Hypotheticals & Real Cases Used in Class

  • Leaky cladding: French manufacturer → house defect in NZ.
  • German couple marry in Germany, buy NZ house, separate – raises matrimonial property & jurisdiction questions.
  • Migrant workers pay “premiums” overseas for NZ jobs; Employment Court held protective NZ statute applies only to in-NZ payments.
  • Chinese intestate estate example:
    • Deceased domiciled in China, owned NZ assets.
    • NZ court has jurisdiction over NZ property only; must apply Chinese succession law (domicile rule).
    • Divorce registered in NZ but not China leads to competing spousal claims; prior Chinese litigation triggers recognition questions.
  • Kentucky fraud injunction: NZ defendant seeks injunction restraining enforcement of a $123,000,000\$123{,}000{,}000 Kentucky default judgment obtained on a fabricated contract. CoA said comity prevents interfering with Kentucky proceedings; Supreme Court granted leave last Friday – Jack argues fraud trumps comity.

Sources of New Zealand PIL

  1. Common Law – majority of principles (e.g., general judgment-enforcement rules) evolved from English precedents, influenced by US & civil-law scholarship.
  2. Legislation – piecemeal; e.g.,
    • High Court Rules (service & jurisdiction gateways).
    • Torts (Choice of Law) Act (Finlayson-era reform).
    • Trans-Tasman Proceedings Act implementing the 20052005 NZ–Aus treaty.
  3. Treaties / Multilateral Instruments – guide or mandate domestic rules (Hague conventions, CISG, protocols on child abduction, etc.).

Policy Rationales

  • Private Interests
    • Party expectations – choose rules yielding predictable, foreseen outcomes.
    • Justice & convenience – efficient, fair forum selection and cost-effective procedure.
  • Public / Systemic Interests
    • Jurisdictional legitimacy – avoid “exorbitant” claims infringing other states’ sovereignty.
    • Comity – mutual respect among courts; decide when intervention (e.g., anti-suit or anti-enforcement injunction) is acceptable.
    • International harmony – reduce forum shopping & inconsistent judgments through harmonised standards.

Impact of Globalisation

  • Increased cross-border mobility of people, goods, data & IP amplifies PIL disputes.
  • Technological advances create delocalised mechanisms (e.g., international arbitration) but also novel jurisdictional questions (cyberspace torts, crypto assets).
  • Historical cases still matter, yet frequency and complexity escalate in the modern era.

Upcoming Session & Preparation

  • Friday: Case study Schumacher v Summer Grove Estates – Irish land, NZ proceedings, jurisdiction gateways.
  • Pre-class task: Complete the online exercise (questions posted on Nuku); brings structured issues for breakout discussion.
  • Bring printed statutory & rule extracts for live application.