This is a single section from Chapter 10. Read the full chapter here.

What is the intended scope of the legislation?

Legislation should expressly state when it applies to cross-border situations if these situations are significant and likely to arise often.

If significant cross-border issues do arise, legislation must provide clear answers to questions about when the rules in the legislation apply and when decision-making powers can be exercised. It should do so by reference to relevant cross-border or connecting factors.

The following are connecting factors that are commonly used to determine when New Zealand law applies:

  • whether certain conduct or events occurred in New Zealand;
  • whether certain property is situated in New Zealand;
  • whether a particular transaction is governed by New Zealand law or has a New Zealand element;
  • whether a person is a New Zealand citizen or permanent resident of New Zealand;
  • whether a person is present, resident, habitually or ordinarily resident, or domiciled in New Zealand at the time of certain events, at the time that civil or criminal proceedings are commenced, or at the time that the relevant court process is served on the person; and
  • whether certain consequences could occur in New Zealand, and the knowledge of the person involved as to whether those consequences would occur in New Zealand.

International law principles affect the extent to which it is appropriate for New Zealand law to attempt to apply to conduct that takes place, or to people who are, outside New Zealand. Those principles affect the choice of connecting factors. Practical limits on New Zealand’s ability to apply and enforce New Zealand law on people outside New Zealand also affect the choice of connecting factors. This is a complex area and specialist advice should be sought, including from MFAT, legal advisers, and MOJ.

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