This analysis considers the implications of Smith v Fonterra Co-operative Group Ltd [2020] NZHC 419 and the possibility of a new tort to the environment developing within New Zealand jurisprudence. In Smith, the New Zealand High Court refused to strike out a cause of action based on a new inchoate tort against seven corporations for the damage likely to be caused by their greenhouse gas emissions (GHGs), and allowed the matter to proceed to trial. The case raises questions as to whether the time is ripe in New Zealand for the development of a tort to the environment, and whether such a tort could apply to hold private emitters liable for harm caused to the atmosphere by GHGs. In this analysis, we conclude that a duty to protect the environment may be a natural evolution of the New Zealand law of torts and may extend to conduct causing damage to the atmosphere, opening up the possibility of successfully suing corporations for harm to the climate.

This article examines the effect of choice of law agreements on the courts’ exercise of jurisdiction. In particular, it considers whether English courts ought to exercise jurisdiction to uphold choice of law agreements that would otherwise be defeated in a competing forum. Two reasons have been advanced in support of this approach: that courts should prioritize the choice of law rules of the forum; and that the parties should be held to their agreement on the applicable law. This article argues that neither of these reasons is justifiable in principle.

Within the context of increased delocalization in the law of international arbitration, anational law has become a well accepted choice of law in the resolution of international disputes. In Halpern v. Halpern, however, the English High Court decided that arbitration agreements form an exception to that development, holding that these are subject to the common law rule that confines contracts to the realms of municipal legal systems. This article discusses the applicability of anational law to arbitration agreements. In particular, the article argues that this issue should be determined in accordance with the principle of party autonomy and, on that basis, evaluates the English approach against a wider international framework.

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