scholarly journals Should the courts assess the merits of a dispute referred to arbitration?

2021 ◽  
Author(s):  
◽  
Edward Sharpe-Davidson
Keyword(s):  
New Zealand ◽  
International Arbitration ◽  
The Subject ◽  
Court Proceedings ◽  
Summary Judgment ◽  
Court Of Appeal

<p>Article 8(1) of Schedule 1 of the Arbitration Act 1996 requires courts to stay proceedings brought on a matter which is the subject of an arbitration agreement except where there is in fact no dispute. The Court of Appeal in Zurich v Cognition interpreted this exception as allowing the courts to assess whether the defendant has an arguable defence to the summary judgment proceedings brought against it. By allowing the court to assess the merits of a dispute referred to arbitration New Zealand is inconsistent with the theoretical and international understandings which require the independence of international arbitration. Court proceedings on a matter referred to arbitration have the potential to rob the parties of the benefits of persisting with arbitration. It is therefore necessary to consider alternatives to art 8(1) which are principally, comparatively and practically sound.</p>

scholarly journals Should the courts assess the merits of a dispute referred to arbitration?

2021 ◽  
Author(s):  
◽  
Edward Sharpe-Davidson
Keyword(s):  
New Zealand ◽  
International Arbitration ◽  
The Subject ◽  
Court Proceedings ◽  
Summary Judgment ◽  
Court Of Appeal

<p>Article 8(1) of Schedule 1 of the Arbitration Act 1996 requires courts to stay proceedings brought on a matter which is the subject of an arbitration agreement except where there is in fact no dispute. The Court of Appeal in Zurich v Cognition interpreted this exception as allowing the courts to assess whether the defendant has an arguable defence to the summary judgment proceedings brought against it. By allowing the court to assess the merits of a dispute referred to arbitration New Zealand is inconsistent with the theoretical and international understandings which require the independence of international arbitration. Court proceedings on a matter referred to arbitration have the potential to rob the parties of the benefits of persisting with arbitration. It is therefore necessary to consider alternatives to art 8(1) which are principally, comparatively and practically sound.</p>

Reservation of title in England and New Zealand

Legal Studies ◽  
1992 ◽  
Vol 12 (2) ◽  
pp. 195-209 ◽  
Author(s):  
Gerard McCormark
Keyword(s):  
New Zealand ◽  
Subject Matter ◽  
The Other ◽  
Other Hand ◽  
House Of Lords ◽  
The Subject ◽  
The One ◽  
Court Of Appeal

Reservations of title clauses have enjoyed mixed fortunes in recent times at the hands of the courts in Britain. On the one hand, the House of Lords has upheld the validity and effectiveness of an ‘all-liabilities’ reservation of title clause. On the other hand, claims on the part of a supplier to resale proceeds have been rejected in a string offirst instance decisions. Reservation of title has however been viewed more favourably as a phenomenon in New Zealand. In the leading New Zealand case Len Vidgen Ski and Leisure Ltd u Timam Marine Supplies Ltd. a tracing claim succeeded. Moreover in Coleman u Harvey the New Zealand Court of Appeal gave vent to the view that the title of the supplier is not necessarily lost when mixing of goods, which are the subject matter of a reservation of title clause, has occurred. There are now a series of more recent New Zealand decisions, some of them unreported, dealing with many aspects of reservation of title.

Res Ipsa Loquitur: The Australasian Experience

1954 ◽  
Vol 12 (1) ◽  
pp. 118-132
Author(s):  
D. P. O'Connell
Keyword(s):  
New Zealand ◽  
Supreme Court ◽  
Burden Of Proof ◽  
House Of Lords ◽  
Difference Of Opinion ◽  
The Subject ◽  
The Law ◽  
Court Of Appeal ◽  
Res Ipsa Loquitur

Dr. T. Ellis Lewis in this Journal in 1951 discussed the operation of the maxim res ipsa loquitur in relation to the burden of proof and proposed certain conclusions. So thorough was his analysis of the question that one would hesitate to intrude upon the field but for the fact that the problems posed by his article and specifically left open by the House of Lords in Barkway's case have recently been considered by the New Zealand Supreme Court and Court of Appeal. A frank difference of opinion on the nature of res ipsa loquitur manifested itself in each court, and hence no excuse is offered for advancing this discussion, which can only be complementary to that of Dr. Ellis Lewis. Advantage will be taken of the opportunity to consider the Australian contributions to the subject. There is perhaps too little awareness in England that many of the academic battles of the law are regularly being fought out in the Australian and New Zealand courts.

Pro-Arbitration Policy in the Australian Courts — the End of Eisenwerk?

2013 ◽  
Vol 41 (2) ◽  
pp. 299-331
Author(s):  
Benjamin Hayward
Keyword(s):  
Case Law ◽  
International Arbitration ◽  
Policy Context ◽  
Australian Case ◽  
Federal Jurisdiction ◽  
Court Of Appeal ◽  
Policy Attention

International arbitration is an important area of federal jurisdiction and federal legislative competence, and has attracted significant policy attention in Australia. This paper undertakes a study of pro-arbitration judicial policy in recent arbitration-related Australian case law which touches upon the continuing applicability of the controversial 1999 Eisenwerk decision of the Queensland Court of Appeal. Against this pro-arbitration judicial policy context, this paper reviews five Eisenwerk-related cases handed down between 2010 and 2012. It concludes that despite pro-arbitration judicial policy being embedded as a requirement of reasoning in decisions under the International Arbitration Act 1974 (Cth), there is mixed evidence of such policy in the cases surveyed. This paper concludes that the extent to which this policy is evidenced largely corresponds with the degree to which contemporary decisions have departed from Eisenwerk.

Racism and silencing in the media in Aotearoa New Zealand

2021 ◽  
pp. 117718012110154
Author(s):  
Liana MacDonald ◽  
Adreanne Ormond
Keyword(s):  
New Zealand ◽  
Indigenous Peoples ◽  
Media Industry ◽  
Racial Discourse ◽  
European Descent ◽  
Aotearoa New Zealand ◽  
The Media ◽  
The Subject ◽  
New Zealanders

Racism in the Aotearoa New Zealand media is the subject of scholarly debate that examines how Māori (Indigenous Peoples of New Zealand) are broadcast in a negative and demeaning light. Literature demonstrates evolving understandings of how the industry places Pākehā (New Zealanders primarily of European descent) interests at the heart of broadcasting. We offer new insights by arguing that the media industry propagates a racial discourse of silencing that sustains widespread ignorance of the ways that Pākehā sensibilities mediate society. We draw attention to a silencing discourse through one televised story in 2018. On-screen interactions reproduce and safeguard a harmonious narrative of settler–Indigenous relations that support ignorance and denial of the structuring force of colonisation, and the Television Code of Broadcasting Practice upholds colour-blind perceptions of discrimination and injustice through liberal rhetoric. These processes ensure that the media industry is complicit in racism and the ongoing oppression of Indigenous peoples.

Newsmaking criminology in Australia and New Zealand: Results from a mixed methods study of criminologists’ media engagement

2019 ◽  
Vol 53 (1) ◽  
pp. 84-101 ◽  
Author(s):  
Mary Iliadis ◽  
Imogen Richards ◽  
Mark A Wood
Keyword(s):  
New Zealand ◽  
News Media ◽  
The United States ◽  
Mixed Methods Study ◽  
The Past ◽  
Professional Duty ◽  
The Subject ◽  
Survey Responses ◽  
Insight Into ◽  
Newsmaking Criminology

‘Newsmaking criminology’, as described by Barak, is the process by which criminologists contribute to the generation of ‘newsworthy’ media content about crime and justice, often through their engagement with broadcast and other news media. While newsmaking criminological practices have been the subject of detailed practitioner testimonials and theoretical treatise, there has been scarce empirical research on newsmaking criminology, particularly in relation to countries outside of the United States and United Kingdom. To illuminate the state of play of newsmaking criminology in Australia and New Zealand, in this paper we analyse findings from 116 survey responses and nine interviews with criminologists working in universities in these two countries, which provide insight into the extent and nature of their news media engagement, and their related perceptions. Our findings indicate that most criminologists working in Australia or New Zealand have made at least one news media appearance in the past two years, and the majority of respondents view news media engagement as a professional ‘duty’. Participants also identified key political, ethical, and logistical issues relevant to their news media engagement, with several expressing a view that radio and television interviewers can influence criminologists to say things that they deem ‘newsworthy’.

The Long-Term Regulation of Safety Standards: The Case of the Electricity Industry in Australia and New Zealand

2012 ◽  
Vol 13 (4) ◽  
pp. 312-332
Author(s):  
Malcolm Abbott
Keyword(s):  
New Zealand ◽  
Electricity Industry ◽  
Political Context ◽  
Safety Standards ◽  
Safety Regulations ◽  
History Of ◽  
The Subject ◽  
Organizational Approach

Throughout much of the history of the electricity industry in Australia and New Zealand the industry has been the subject of safety regulations. Although this regulation has been a constant throughout the life of the industry the organizational approach to regulation has changed over the years. Periodically in Australia and New Zealand history these questions have been raised in a political context, although notably the structure of safety regulators does not get much attention in the standard histories of the industry. The purpose of this paper, therefore, is to discuss some of the general issues that have arisen in the reform of regulation in the case of electricity safety over the longer term and how it relates overall to the development of the electricity industry.

Equity and certainty in contract law

Acta Juridica ◽  
2021 ◽  
Vol 2021 ◽  
pp. 141-176
Author(s):  
F Brand
Keyword(s):  
Supreme Court ◽  
Contract Law ◽  
Constitutional Court ◽  
High Court ◽  
Contractual Relationships ◽  
The Supreme Court ◽  
The Subject ◽  
Court Of Appeal ◽  
Do So

The role of abstract values such as equity and fairness in our law of contract has been the subject of controversy for a number of years. In 2002 the Supreme Court of Appeal took the position that these values do not constitute self-standing grounds for interfering with contractual relationships. Despite this being consistently maintained by the SCA in a number of cases, some High Court judges deviated from this position on the basis that they were permitted to do so by some minority judgments and obiter dicta in the Constitutional Court. The uncertainty thus created has fortunately now been removed by the judgment of the Constitutional Court in Beadica v The Trustees for the Time being of the Oregon Trust.

Event spaces and the shaping of economic subjectivity: Inside the Social Enterprise World Forum

2021 ◽  
Vol 36 (5) ◽  
pp. 347-355
Author(s):  
Tom Baker ◽  
Ryan Jones ◽  
Michael Mann ◽  
Nick Lewis
Keyword(s):  
New Zealand ◽  
Social Enterprise ◽  
Affective Responses ◽  
Subject Position ◽  
Social Entrepreneur ◽  
Economic Sectors ◽  
The Social ◽  
New Knowledge ◽  
The Subject ◽  
Global Conference

Drawing on observations at the 2017 Social Enterprise World Forum (SEWF) – a global conference held in Christchurch, New Zealand – this paper examines the significance of localised event spaces in shaping economic subjects and, by extension, economic sectors. Conferences such as the SEWF are sites and moments that provide access to new knowledge, foster collective action and shape the subjectivities of economic actors. We describe how the SEWF cultivated sympathetic affective responses towards social enterprise and the subject position of the social entrepreneur, and demonstrate how the local specificities of Christchurch, as a place, were key to the cultivation of social-entrepreneurial subjectivity at the SEWF.

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