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Lloyd's Maritime and Commercial Law Quarterly


Alex Mills

NYGH’S CONFLICT OF LAWS IN AUSTRALIA (8th Edition). M Davies, MA, BCL, LLM, Admiralty Law Institute Professor and Director, Maritime Law Institute, Tulane Law School, Professorial Fellow, University of Melbourne, A Bell, SC, BA, LLB, BCL, D Phil, 11 Wentworth Chambers, Sydney, Adjunct Professor, University of Sydney Law School, Senior Fellow, University of Melbourne Law School, and PLG Bretherton, BA, LLB, Judge of the Supreme Court of New South Wales. LexisNexis, Chatswood NSW (2010) ciii and 876 pp, plus 19 pp Index. Paperback.
The eighth edition of Nygh s Conflict of Laws in Australia is the first to be produced without the guidance of its eponymous founder, who sadly passed away in 2002. While his wealth of experience, including as an academic, judge of the Family Court of Australia, and delegate at the Hague Conference on Private International Law, is irreplaceable, the book remains in distinguished hands—Martin Davies, who co-edited the seventh edition with Peter Nygh, is now joined by Sydney barrister Andrew Bell SC, and Paul Le Gay Brereton, Judge of the Supreme Court of New South Wales.
The eight years that have passed since the seventh edition have been fairly eventful ones in Australian conflict of laws, with particularly notable High Court of Australia decisions on jurisdiction concerning internet defamation (Dow Jones & Co Incv. Gutnick [2002] HCA 56), as well as two somewhat unfortunate decisions on choice of law (Regie Nationale des Usines Renault SA v. Zhang [2002] HCA 10) and the operation of renvoi (Neilson v. Overseas Projects Corp of Victoria Ltd [2005] HCA 54) in cross-border torts. While law, like nature, knows no pause in progress, it is regrettable that the book went to print before the passage of two recent and important federal statutory reforms: the Trans-Tasman Proceedings Act 2010, which significantly affects a number of conflict of laws issues connected with New Zealand; and the International Arbitration Amendment Act 2010, which harmonises and modernises the legislative framework for arbitration. The authors have otherwise not only brought the book up to date, but also restructured a number of sections and added new content. The range of material covered in the book is wider than what many would consider the traditional scope of conflict of laws—including, for example, “State Immunity, Act of State and Non-Justiciability” (Chapter 10), “Evidence from and for Other Countries” (Chapter 11) and “Choice of Law in Arbitration” (Chapter 39)—but real-life cases seldom conform to academic boundaries, and the breadth of coverage is thus likely only to enhance its utility to practitioners. The book is also admirably comprehensive in its approach to the different subjects in which conflict of laws issues may arise, covering not only contracts, torts, property and family law issues, but also restitutionary claims and equitable obligations (albeit briefly), negotiable instruments, international monetary obligations, trusts, corporations and insolvency.
The length, breadth and detail of the book does suggest that it is a work more suited to practitioners and advanced researchers than to undergraduate students. At the risk of criticising the book for failing to achieve something it did not set out to do, it is also slightly disappointing as an academic work. For example, in the last twenty years, perhaps liberated from common law traditionalism by the dominance of European regulation in the United Kingdom, the High Court of Australia and the Supreme Court of Canada have both finally begun to adapt their approaches to


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