Views
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.
In the course of its decision, the Court resolved a number of important points of law, some of which had not been addressed in any Commonwealth decisions:
First, it resolved a dispute that had arisen between High Court authorities about the scope of the in personam exception, resolving it in favour of a broad interpretation. In particular, the Court disagreed with High Court authority (Burt v Yiannakis [2015] NZHC 1174) that suggested an institutional constructive trust claim was in rem and thus outside the exception.
Second, it held (reversing the High Court) that the Moçambique rule does not have reflexive effect. The rule prevents the New Zealand court from taking jurisdiction over claims in rem involving foreign land out of comity to the foreign court, but does not require the New Zealand court to take jurisdiction over cases involving New Zealand land. Although New Zealand will often be the appropriate forum for a case involving New Zealand land, the court is free to send it overseas if the circumstances require, even if the claim asserts legal title in rem.
Third, the Court confirmed that there is a second exception to the Moçambique rule – where the claim arises incidentally in the administration of an estate. Dicey, Morris and Collins had suggested the existence of this exception for many editions, but it had to be inferred from earlier cases without being properly articulated. The Court expressly found such an exception to exist and that it would have applied in this case.
In the course of its analysis, the Court expressed sympathy for the arguments in favour of abolishing the Moçambique rule entirely. Although the Court did not go that far, it reinforced a trend of the courts restricting the application of the rule and suggested that in the right case, the courts might be prepared to abandon it entirely.
Private International Law in Africa: Comparative Lessons
Written by Chukwuma Okoli, TMC Asser Institute, The Hague
About a decade ago, Oppong lamented a “stagnation” in the development of private international law in Africa. That position is no longer as true as it was then – there is progress. Though the African private international law community is small, the scholarship can no longer be described as minimal (see the bibliograhy at the end of this post). There is a growing interest in the study of private international law in Africa. Why is recent interest on the study of private international law [in Africa] important to Africa? What lessons can be learn’t from other non-African jurisdictions on the study of private international law? Read more
The Work of the HCCH and Australia: The HCCH Judgments Convention in Australian Law
Written by Michael Douglas, Mary Keyes, Sarah McKibbin and Reid Mortensen
Michael Douglas, Mary Keyes, Sarah McKibbin and Reid Mortensen published an article on how the implementation of the HCCH Judgments Convention would impact Australian private international law: ‘The HCCH Judgments Convention in Australian Law’ (2019) 47(3) Federal Law Review 420. This post briefly considers Australia’s engagement with the HCCH, and the value of the Judgments Convention for Australia.
Australia’s engagement with the HCCH
Australia has had a longstanding engagement with the work of the Hague Conference since it joined in 1973. In 1975, Dr Peter Nygh, a Dutch-Australian judge and academic, led Australia’s first delegation. His legacy with the HCCH continues through the Nygh Internship, which contributes to the regular flow of Aussie interns at the Permanent Bureau, some of whom have gone on to work in the PB. Since Nygh’s time, many Australian delegations and experts have contributed to the work of the HCCH. For example, in recent years, Professor Richard Garnett contributed to various expert groups which informed the development of the Judgments Project. Today, Andrew Walter is Chair of the Council on General Affairs and Policy. Read more
News
UK to Join HCCH Judgments Convention ‘as Soon as Practicable’
Yesterday, the UK Government published its response to a consultation on the prospect of joining the 2019 HCCH Judgments Convention. After summarising the responses received during the consultation, the Government concludes:
16. It is clear from the responses received for questions 1, 2 and 5 that respondents consider the merits of Hague 2019 to outweigh any potential downsides. This corresponds with the feedback that the Government received from stakeholders during round-table engagement sessions on this matter.
17. Having carefully considered the responses received and wider stakeholder feedback, the Government has decided that the UK will sign Hague 2019 as soon as practicable. […]
The Government also addresses the question of possible reservations under Articles 14, 16, 18, and 19 and a possible notification under Article 29:
49. Declarations under Articles 14, 16, 18 and 19 can be made upon signature, ratification, or at any time thereafter, and may be subsequently modified or withdrawn at any time. Having carefully considered the responses to question 9, the Government is of the view that there were no sufficiently strong policy reasons raised by respondents to this Consultation to warrant the UK making declarations under the relevant articles of Hague 2019 at this time.
[…]
52. The Government will keep questions of declarations under review as it proceeds to signature and implementation, and in future as the Convention comes into force between the UK and current and future Contracting States.
53. The Government has considered the concerns in relation to the Russian Federation having signed Hague 2019 and considers that UK should sign the Convention with the understanding that a future notification in relation to the Russian Federation under Article 29 would be available to prevent the Convention applying between the UK and Russia, should there be any development in the latter’s ratification of Hague 2019.
The decision has already been welcomed by the President of the Law Society.
Book Launch: Blockchain & Private International Law – New Date
The event organized to celebrate the launch of the book Blockchain & Private International Law, originally scheduled for 5 October, will now take place on 20 December 2023 at 18.15, both physically at the Université de Lausanne (AULA, IDHEAP Building) and online (Zoom link).
New Edition of Leading Canadian Conflict of Laws Treatise
A loose-leaf publication tends to stay as current as the most recent set of insert pages, and so identifying it either by its initial year of publication or its edition number can be misleading. For many years the leading Canadian work on private international law has been the 6th edition of Castel & Walker Canadian Conflict of Laws, with that edition first appearing in 2005. For nearly two decades, then, it has had the same year of publication and edition number, but as a loose-leaf (and as available through an electronic subscription) it has been kept quite up-to-date on a frequent basis. Now comes a new edition, the 7th, published in 2023 and with a revised title. The text is now called simply Canadian Conflict of Laws and its sole author, as was the case for the 6th edition, is Professor Janet Walker of Osgoode Hall Law School. The change in the title reflects the completion of a long process of transition from the original edition (1975) as written by Professor Jean-Gabriel Castel through some editions that were co-written by Professors Castel and Walker. Detailed information about the new edition is available here. It remains an indispensable resource in the Canadian context and beyond.