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Endnotes

^[1] This point is made by J Hodder in "Trans-Tasman Business Law: Co-ordinating, Not Harmonising" 23 TCL 33 1.

^[2] This point is made by D Goddard in "Does the Internet Require New Norms?", International Law Forum 2 (2000) 183, 186.

^[3] The applicable law is the law of a particular country which the parties to a contract intended to govern the contract or, where no such intention can be established, the law with which the contract is most closely connected. This is also known as the "proper law of the contract", see C Schmitthoff The Law & Practice of International Trade (Stevens & Sons, London, 1990) 209.

^[4] The three most significant countries in terms of both exports and imports are Australia, the United States and Japan.

^[5] For example, Venezuela is the New Zealand Dairy Board's largest consumer market for milk powder (New Zealand Dairy Board Annual Report 2000, page 2), although it does not appear in the list of the top 10 importing countries. Other significant markets for the dairy industry are the Russian Federation, Morocco, Algeria and Saudi Arabia.

^[6] The Hague Conventions on the Taking of Evidence Abroad, and the Service Abroad of Judicial and Extrajudicial Documents are reproduced in appendices B and C respectively. Other Hague Conference Conventions can be accessed at http://www.hcch.net (last accessed 1 November 2000). UNCITRAL conventions and model laws are available from the UNCITRAL website http://www.uncitral.org.

^[7] Private International Law, also known as Conflict of Laws, is the body of law concerned with issues arising where transactions, relationships, and disputes span the boundaries of different countries with different legal systems. See further Laws NZ Conflict of Laws: Jurisdiction and Foreign Judgments (Butterworths, Wellington, 1996) paras 1_4.

^[8] Law Commissioners have also made presentations on the topic of international trade at meetings of the Organisation for Economic Co-operation and Development, and the Asia-Pacific Economic Co-operation (APEC). See Hon Justice Baragwanath "Changes in International and Domestic Law which are Critical to a Borderless World of Electronic Commerce" (presented at APEC Conference, Auckland, 6 September 1999) available at http://www.lawcom.govt.nz/speeches/apec060999.htm (last accessed 1 November 2000).

^[9] Refer to appendix A for details of the top 10 countries in terms of import value, and the top 10 in terms of export value, in trade with New Zealand.

^[10] The full titles are the Convention on the Civil Aspects of International Child Abduction (concluded on 25 October 1980) and the Convention on Protection of Children and Co-operation in respect of Intercountry Adoption (concluded on 29 May 1993 and discussed in NZLC PP38 Adoption: Options for Reform (Wellington, 1999) at paras 137_143).

^[11] This draft Convention is discussed in chapter 13.

^[12] For a description of the different types of international agreements, see NZLC R34 A New Zealand Guide to International Law and its Sources (Wellington, 1996) paras 18_23.

^[13] Other techniques are contractual (by producing uniform rules which contract drafters are free to incorporate) and explanatory (by issuing legal guides on contract practices and laws). See GShapira "UNCITRAL and its Work _ Harmonisation and Unification of International Trade Law" [1992] NZLJ 309, 310_311. Currently a legal guide is being drafted by an UNCITRAL Working Group in respect of privately funded infrastructure projects.

^[14] Above n 13, 310.

^[15] See the Privy Council decision in Attorney General for Canada v Attorney-General for Ontario [1937] AC 326, 347_348 and NZLC R34 para 28.

^[16] See NZLC R45 The Treaty Making Process (Wellington, 1997) para 144.

^[17] Foreign Affairs, Defence and Trade Committee "Review of the International Treaty Examination Process" [1999] AJHR I 4E. The Government has agreed to the recommendations (23 TCL 7 11).

^[18] These methods of implementation are discussed in detail in NZLC R34, above n 12, chapter 2, and NZLC R45, above n 16, chapter 6.

^[19] See section 209 and the Fifth Schedule of the Maritime Transport Act 1994, and section 5 and the Third Schedule of the Arbitration Act 1996.

^[20] See discussion in chapter 2 para 18.

^[21] M Sneddon "The UNCITRAL Draft Convention on Independent Guarantees and Standby Letters of Credit" (1995) 23 Aust Business LR 145.

^[22] See Laws NZ Banking (Butterworths, Wellington, 1999) paras 141_144, and Sale of Goods (Butterworths, Wellington, 1995) paras 349_351.

^[23] L Gorton "Draft UNCITRAL Convention on Independent Guarantees" [1997] JBL 240, 242.

^[24] Commission on Banking Technique and Practice policy statement, 21 June 1999, http://www.iccwbo.org/home/statements_rules/statements/1999/un_letters_of_credit_and_independant_guarantees_endorsement.asp (last accessed 1 November 2000).

^[25] Explanatory Note to the UNCITRAL Convention on Independent Guarantees and Stand-by Letters of Credit para 5.

^[26] Gorton, above n 23, 243.

^[27] Explanatory Note, above n 25, para 19.

^[28] See Laws NZ Banking, above n 22, 159_160.

^[29] Sneddon, above n 21, 147_148.

^[30] Explanatory Note, above n 25, para 48.

^[31] [1989] 1 NZLR 114.

^[32] Above n 31, 121.

^[33] Above n 31, 123.

^[34] P Zohrab [1996] NZLJ 392.

^[35] HC Wellington, CP 118_95, 16 June 1995.

^[36] Above n 35, 15_16. Compare Themehelp v West [1996] QB 84 in which a majority of the United Kingdom Court of Appeal held that the plaintiffs had satisfied the onus of showing that there was an arguable case that the defendants had been fraudulent. It was held therefore that there was jurisdiction to grant interim relief to restrain the defendant from enforcing the guarantee (100_101).

^[37] Above n 34, 396. See also Group Josi Re v Walbrook Insurance Co [1996] 1 WLR 1152 in which the United Kingdom Court of Appeal dismissed an appeal from a decision (approved in Fortex) that a letter of credit could not be declared void simply because the underlying insurance contracts were illegal (1166_1167).

^[38] Article 1(1).

^[39] Explanatory Note to the UNCITRAL Model Law on International Credit Transfers para 1.

^[40] E Bergsten "UNCITRAL Model Law on International Credit Transfers" [1991] 7 JIBL 276, 277.

^[41] Bergsten, above n 40, 277.

^[42] Bergsten, above n 40, 278.

^[43] Directive 97/5/EC of the European Parliament and of the Council of 27 January 1997 on cross-border credit transfers, article 2(a).

^[44] This means that the Model Law is subject to domestic rules for consumer protection. This footnote is included in many UNCITRAL texts and reflects that, when created in 1966, UNCITRAL's mandate was considered not to include issues of consumer protection, as international trade was generally conducted between businesses rather than consumers. See further NZLC R58 Electronic Commerce Part Two (Wellington, 1999) para 103.

^[45] L Bøjer "International Credit Transfers: The Proposed EC Directive compared with the UNCITRAL Model Law" [1995] 6 JIBL 223, 224_225.

^[46] Bøjer, above n 45, 225.

^[47] CHIPS and Fedwire are electronic funds transfer systems.

^[48] Bergsten, above n 40, 279.

^[49] Explanatory Note, above n 39, para 18.

^[50] 4A_209, Bergsten, above n 40, 281.

^[51] Bøjer, above n 45, 226.

^[52] Bergsten, above n 40, 283.

^[53] Dovey v Bank of New Zealand (2000) 6 NZBLC 102,953. Also reported at (2000) 9 TCLR 263.

^[54] See Laws NZ Banking, above n 22, para 14.

^[55] The Brimnes [1975] QB 929, 963.

^[56] Mardorf Peach v Attica Sea Carriers [1977] AC 850, 880.

^[57] Above n 56, 102, 960.

^[58] Above n 56, 102, 961.

^[59] Above n 56, 102, 963.

^[60] [1981] 2 Lloyd's LR 194.

^[61] Explanatory Note, above n 39, para 14.

^[62] Explanatory Note to the United Nations Convention on International Bills of Exchange and International Promissory Notes para 2.

^[63] Article 59.

^[64] Explanatory Note, above n 62, para 42.

^[65] Article 75.

^[66] Explanatory Note, above n 62, para 36.

^[67] W Kennett "The Production of Evidence within the European Community" (1993) 56 MLR 342, 345.

^[68] D McClean International Judicial Assistance (Oxford University Press, 1992) 101.

^[69] [1989] 1 All ER 745.

^[70] Dicey and Morris The Conflict of Laws (Sweet & Maxwell, London, 1993) 101_103 and Government of India v Taylor [1955] AC 491. See also discussion in NZLC R50 Electronic Commerce Part One (Wellington, 1998) para 301. An exception to this principle lies in sections 3 and 3A of the Reciprocal Enforcement of Judgments Act 1934, which allows for judgments from Australian courts to be enforced under the Act, in situations where Australian tax is payable. The corresponding Australian provision is contained in section 3 of the Foreign Judgments Act 1991. See also Ayres v Evans (1981) 39 ALR 129 (discussed in NZLC R52 Cross-border Insolvency (Wellington, 1999) para 149) in which the Federal Court allowed a claim by the New Zealand Official Assignee on the grounds that the Official Assignee was not acting as agent for a foreign revenue, but in the interests of all creditors (131 and 140).

^[71] Above n 69, 761_762.

^[72] Above n 69, 757.

^[73] [1993] DCR 970.

^[74] Above n 73, 977.

^[75] Kennett, above n 67, 356; compare McClean, above n 68, 86 who describes it as one of the most successful Hague Conventions.

^[76] Article 14 of the UNCITRAL Model Law on Cross-border Insolvency expressly provides that letters rogatory are not required when giving notification of proceedings. This article was intended to expedite proceedings by not requiring that the "cumbersome and time-consuming" procedures for serving notice of proceedings be followed (Guide to Enactment para 108).

^[77] Above n 67, 346.

^[78] Above n 67, 357.

^[79] [1991] 1 WLR 1140; Kennett, above n 67, 358.

^[80] [1997] 2 NZLR 105. See also B v Dentists Disciplinary Tribunal [1994] 1 NZLR 96, in which it was held that expert evidence could be given via video-link from Dallas, Texas, provided that guidelines were followed to ensure compliance with the rules of natural justice (109).

^[81] Evidence Amendment Act 1994, sections 19_23; see also Plumley v Ellis [1997] 2 NZLR 105.

^[82] NZLC R55 Evidence (Wellington, 1999).

^[83] Above n 82, Vol 1 at paras 504_506; the Commission's recommended Evidence Code is in Vol2 of the report.

^[84] But see also Re [A] Films Limited [1993] DCR 970.

^[85] See para 79.

^[86] ALRC R80 Legal Risk in International Transactions (Canberra, 1996) 86_87. While the Standing Committee of Attorneys-General have agreed in principle that Australia should accede to the Convention, that decision has not been implemented as some state and territory courts have not made the necessary changes to their governing rules.

^[87] See discussion of Re State of Norway and other authorities in chapter 6 paras 77_78.

^[88] McClean, above n 68, 19.

^[89] McClean, above n 68, 20; see also HCR 211.

^[90] McClean, above n 68, 20.

^[91] McClean, above n 68, 21.

^[92] McClean, above n 68, 23.

^[93] McClean, above n 68, 32.

^[94] Commonwealth Secretariat "Recognition and Enforcement of Judgments and Orders and the Service of Process within the Commonwealth" A Report of a Working Meeting held at Basseterre, St Kitts, 24_28 April 1978, paras 8.11 and 8.58.

^[95] NZLC R50, above n 70, paras 264_266.

^[96] Also subject to HCR 223 concerning proceedings under the Carriage by Air Act 1967 and certain provisions of the Civil Aviation Act 1990.

^[97] Austria, Belgium, Czechoslovakia, Denmark and Iceland, Estonia, Finland, France, Germany, Greece, Hungary, Iraq, Italy, Lithuania, the Netherlands, Norway, Poland, Portugal, Spain, Sweden, Switzerland, Turkey, and the States of the former Yugoslavia (from D Campbell (ed) The Comparative Law Yearbook of International Business (Kluwer, London, 1998) appendix B).

^[98] Commonwealth Secretariat Working Paper, above n 94, paras 8.15_8.19.

^[99] Commonwealth Secretariat Working Paper, above n 94, para 8.77.

^[100] R 51J of the Code of Civil Procedure as amended by SR 1939/9.

^[101] Note that at one stage it was proposed to omit the rules dealing with service of foreign process from the then Code of Civil Procedure on the grounds that they were irrelevant to the actual procedure of the New Zealand courts (Commonwealth Secretariat Working Paper, above n 94, para 8.06).

^[102] Above n 94.

^[103] D Goddard "Global Disputes _ Jurisdiction, Interim Relief and Enforcement of Judgments" paper delivered to the NZLS Conference (Rotorua, April 1999) 13.

^[104] Commonwealth Secretariat Working Paper, above n 94, para 8.13.

^[105] See NZLC R50, above n 70, para 8.

^[106] Austria, Barbados, Botswana, Burkina Faso, Burundi, Cameroon, Chile, Czech Republic, Egypt, Gambia, Georgia, Guinea, Hungary, Kenya, Lebanon, Lesotho, Malawi, Morocco, Nigeria, Romania, Senegal, Sierra Leone, Slovakia, Tunisia, Tanzania and Zambia.

^[107] AJ Waldron "The Hamburg Rules _ a Boondoggle for Lawyers?" (1991) JBL 305, 319. See also S Thompson "The Hamburg Rules: Should they be implemented in Australia and

New Zealand?" (1992) 4 Bond LR 168, 184.

^[108] Thompson, above n 107, 181.

^[109] Waldron, above n 107, 311.

^[110] Above n 107, 313_314.

^[111] Above n 107, 315.

^[112] The full title is the International Convention for the Unification of Certain Rules of Law relating to Bills of Lading of 24 August 1924 (Hague Rules) as amended by the Protocol of 23 February 1968 (Visby Rules). Discussed in NZLC R50, above n 70, para 118.

^[113] As noted in NZLC R58, above n 44, para 77.

^[114] Laws NZ Limitation of Civil Proceedings (Butterworths, Wellington, 1993) para 44.

^[115] The Hamburg Rules are mentioned in NZLC R50, above n 70, paras 8 and 121, and NZLC R58, above n 44, para 77.

^[116]Discussed in NZLC R50, above n 70, paras 124_125 and NZLC R58, above n 44, para 71.

^[117]For further information see http://www.bolero.net.

^[118]Article 1(a). A person is not an operator wherever he or she is also a carrier under the applicable conventions.

^[119] Transport-related services are defined in article 1(d) as including storage, warehousing, loading, unloading, stowage, trimming, dunnaging and lashing.

^[120]See chapter 8 paras 113_114.

^[121] See D Goddard "New Zealand's Contract Statutes: International Transactions" in NZLC R25 Contract Statutes Review (Wellington, 1993) paras 7.45_7.48.

^[122] [1955] 1 QB 158, 185. The Court of Appeal held that a clause excluding liability did not prevent the complainant from suing in tort.

^[123] See sections 4 and 8; and J Burrows, J Finn and S Todd "Law of Contract in New Zealand" (Butterworths, Wellington, 1997) 479.

^[124] [1974] 1 NZLR 505.

^[125] See Burrows, Finn and Todd, above n 123, 472. The Eurymedon was decided 3_2 by the Privy Council, which overturned a unanimous decision of the New Zealand Court of Appeal.

^[126] See Elder Dempster and Co Ltd v Paterson Zochonis and Co Ltd [1924] AC 522, 548; and The Eurymedon, above n 124, 516 and 525. See also the High Court of Australia decision in Port Jackson Stevedoring Pty Ltd v Salmond & Spraggon (Australia) Pty Ltd (1978) 139 CLR 231 (The New York Star) which was overturned on appeal to the Privy Council. Since becoming the final court in Australia, the High Court has not reconsidered the validity of Himalaya clauses.

^[127] [1996] AC 650, 664_665. Their Lordships stopped short of recognising the exception in this case as they had not heard argument directed specifically at this fundamental question (665 per Lord Goff (for the Board)). Note that as the case was on appeal from the Court of Appeal of Hong Kong, The Mahkutai is not binding on New Zealand courts, although it is highly persuasive.

^[128]Above n 123, 474.

^[129] These are contained in the Fifth Schedule to the Maritime Transport Act 1994. See chapter 8 for a discussion of the Hague Rules and their possible successor the Hamburg Rules.

^[130] S Chatterjee "The UN Convention on the Liability of Operators of Transport Terminals in International Trade: The End of the Himalaya Clause?" [1994] JBL 109, 118 and 120.

^[131] M Dean "Removing a Blot on the Landscape" [2000] JBL 143, 146.

^[132] Above n 131, 145.

^[133] Explanatory Note to the Model Law on the Procurement of Goods, Construction and Services para 3. This greater need exists because procurement is often connected with projects that are part of the essential process of economic and social development, and these countries in particular suffer from a shortage of public funds to use for procurement.

^[134] S Arrowsmith "Towards a Multilateral Agreement on Transparency in Government Procurement" (1998) 47 ICLQ 793.

^[135] For a comparison of the Model Law and the Agreement on Government Procurement see GRosenberg "International Construction Procurement _ the Developing Regulatory Framework" (1997) 14(2) International Construction Law Review 168.

^[136] Above n 135, 187.

^[137] Correspondence from Department of Justice to the then Ministry of External Relations and Trade dated 21 April 1993.

^[138] Correspondence from the Law Commission to the then Ministry of External Relations and Trade dated 30 April 1993.

^[139] "New Zealand and the WTO" http://www.mfat.govt.nz/foreign/wto.html (Ministry of Foreign Affairs and Trade, Wellington, accessed 28 March 2000).

^[140] "New Zealand and the International Community" http://www.mfat.govt.nz/foreign/inter.html (Ministry of Foreign Affairs and Trade, Wellington, accessed 28 March 2000).

^[141] R Goode "The UNIDROIT Convention on International Financial Leasing" Summary No 19 made to United Nations Congress on Uniform Commercial Law in the 21st Century, 18_22 May 1992.

^[142] R Goode "Conclusions of the Leasing and Factoring Conventions I" [1988] JBL 347, 348_349.

^[143]Above n 142, 349.

^[144] See above n 3 and para 4 regarding applicable law.

^[145] Discussed by O Borch in "The EU Convention on Insolvency Proceedings and Mad Cow Disease" Insolvency and Restructuring (Law Business Research, 1998) 9. The provisions of the Convention have now been modified and passed as the European Bankruptcy Regulation which will come into effect in June 2002.

^[146] NZLC R52, above n 70, para 8.

^[147] See Note of UNCITRAL Secretariat A/CN.9/WG.V/WP.50 paras 1_7. At the 33rd UNCITRAL Session held in June 2000, UNCITRAL approved the recommendations of the Working Group and mandated the preparation of a set of principles with a legislative guide. A colloquium on insolvency is to be held before the next session of the Working Group, in co-operation with the International Federation of Insolvency Practitioners (INSOL International) and the International Bar Association.

^[148] NZLC R50, above n 70, para 307.

^[149] See NZLC R58, above n 44, chapter 6, in particular para 282.

^[150] Above n 44, paras 279_281.

^[151] Held in March 2000 in Ottawa, Canada.

^[152] Article 6.

^[153] Article 7.

^[154] Article 8.

^[155] Article 10.

^[156] Article 12.

^[157] Article 13.

^[158] For a discussion of this Act and its limitations, see D Goddard "Global Disputes _ Jurisdiction, Interim Relief and Enforcement of Judgments" paper delivered to the NZLS Conference, Rotorua, April 1999.

^[159] G McLaughlin and N Cohen "Efforts to Harmonize International Receivables Financing" New York Law Journal 19 November 1997 http://www.ljx.com/practice/intrade/1119itreceive.html (last accessed 2 November 2000).

^[160] A similar provision is contained in article 9 of the United States Uniform Commercial Code.

^[161] Above n 139. See also articles 1(a) and 3 of the draft Convention version A/CN.9/466 of 2November 1999.

^[162]Above n 139. See also article 6(d) of the draft Convention version A/CN.9/466 of 2 November 1999, which defines "writing" as any form of information that is accessible so as to be usable for subsequent reference. This technologically neutral provision is consistent with the meaning ascribed to "writing" in other UNCITRAL texts on electronic commerce and electronic signatures.

^[163] The right to notify the debtor is preserved in article 15 of the draft Convention version A/CN.9/466 of 2 November 1999.

^[164] See article 24 of the draft Convention version A/CN.9/466 of 2 November 1999.

^[165] Above n 139.

^[166] U Brink "New German Legislation Opens Door to Ratification of UNIDROIT Factoring Convention" (1998) 4 Uniform Law Review, 770_772.

^[167] R Goode "Conclusion of the Leasing and Factoring Conventions II" [1988] JBL 510, 511. France made such a declaration under article 6(1) when ratifying the Convention.