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Maria Hook

This note addresses the question whether there is a common law basis for the recognition of foreign declarations of parentage. It appears that this issue has not received much attention in common law jurisdictions, but it was the subject of a relatively recent Privy Council decision (C v C [2019] UKPC 40).

The issue arises where a foreign court or judicial authority has previously determined that a person is, or is not, a child’s parent, and the question of parentage then resurfaces in the forum (for example, in the context of parentage proceedings or maintenance proceedings). If there is no basis for recognition of the foreign declaration, the forum court will have to consider the issue de novo (usually by applying the law of the forum: see, eg, Status of Children Act 1969 (NZ)). This would increase the risk of “limping” parent-child relationships (that is, relationships that are recognised in some countries but not in others) – a risk that is especially problematic in the context of children born by way of surrogacy or assisted human reproduction technology.

The Moçambique Rule in the New Zealand Court of Appeal

Written by Jack Wass, Stout Street Chambers, New Zealand

On 5 December 2019, the New Zealand Court of Appeal released a significant decision on jurisdiction over land in cross-border cases.

In Christie v Foster [2019] NZCA 623, the Court overturned the High Court’s decision that the Moçambique rule (named after British South Africa Co v Companhia de Moçambique [1893] AC 602) required that a dispute over New Zealand land be heard in New Zealand (for a case note on the High Court’s decision, see here). The plaintiff sought to reverse her late mother’s decision to sever their joint tenancy, the effect of which was to deprive the plaintiff of the right to inherit her mother’s share by survivorship. The Court found that the in personam exception to the Moçambique rule applied, since the crux of the plaintiff’s claim was a complaint of undue influence against her sister (for procuring their mother to sever the tenancy), and because any claim in rem arising out of the severance was precluded by New Zealand’s rules on indefensibility of title. As a consequence the Court declined jurisdiction and referred the whole case to Ireland, which was otherwise the appropriate forum.

Posted on behalf of Jan Jakob Bornheim

The New Zealand Yearbook of International Law (Brill) is an annual, internationally refereed publication. The Editors call for both short notes and commentaries, and longer in-depth articles, for publication in Volume 16 of the Yearbook (2018), which will be published in 2019.

Notes and commentaries should be between 3,000 to 7,000 words. Articles may be from 8,000 to 15,000 words.The Editors seek contributions on any current topic in public or private international law. The Editors particularly encourage submissions that are relevant to the Pacific, the Southern Ocean and Antarctica, and New Zealand.

Submissions will be considered on a rolling basis. However, the closing date for submissions for Volume 16 is 31 May 2019.

Last year the New Zealand singer Lorde cancelled a concert in Tel Aviv following an open letter by two New Zealand-based activists urging her to take a stand on Israel’s illegal occupation of Palestine. A few weeks later, the two activists found themselves the subject of a civil claim brought in the Israeli court. The claim was brought by the Israeli law group Shurat HaDin, on behalf of three minors who had bought tickets to the concert, pursuant to Israel’s so-called Anti-Boycott Law (the Law for the Prevention of Damage to the State of Israel through Boycott). The Israeli court has now released a judgment upholding the claim and ordering the activists to pay NZ$18,000 in damages (plus costs).

New resource on New Zealand conflict of laws

The University of Otago recently set up an online platform dedicated to the conflict of laws in New Zealand: www.otago.ac.nz/conflicts/index.html

The platform includes (1) a reference database of New Zealand scholarship on the conflict of laws, originally created by Professor Elsabe Schoeman at Auckland University, (2) a blog, and (3) links to relevant sources and materials.

Feedback and suggestions on the site are much appreciated. In particular, if you are aware of any relevant materials that are currently missing from the database, I would be very grateful if you could let me know.

Recent conflicts developments in New Zealand

With the end of the year fast approaching, here is a quick round-up of news from New Zealand:

  • The New Zealand Parliament recently passed the Private International Law (Choice of Law in Tort) Act 2017. The Act introduces new torts choice of law rules and abolishes the common law rule of double actionability. The Act is closely modelled on the Private International Law (Miscellaneous Provisions) Act 1995 (UK), with some notable exceptions. A copy of the Act is available here (and see here for its legislative history).