LegalResearchFoundation

Notwithstanding the reality that one-sided contracts account for many of the transactions in the modern economy, we continue to treat them almost without any differentiation when it comes to contractual construction. The upshot of this is that one-sided contracts are treated in like manner as negotiated bargains and exchanges. This article provides an exposition on the disutility of treating one-sided contracts in that fashion. It asserts that the settled rules of contractual construction are inapposite to one-sided agreements, especially in the information society. Thus, it is proposed that to ensure justice between the parties to such contracts the purposive construction method should be adopted. This is particularly so on account of two social facts. One is the lack of relational proximity between firms and platforms who deploy one-sided contracts and their customers. The other is the informational deluge that confronts customers, who are the addressees of one-sided contracts.

The growing Māori economy in Aotearoa New Zealand is leading to increased commercial activity across multiple sectors. Some of this commercial activity is attracting the attention of foreign entities. Inevitably, disputes within these commercial sectors will arise, some of which may lead to the commencement of arbitral proceedings. This article explores the potential and appropriateness of applying tikanga Māori as the substantive law, law of the arbitration agreement, and lex arbitri (albeit only in a procedural sense as inevitably arbitration requires the supervision of a state's municipal court system) in arbitrations, both domestic and international. Historical treatment of "rules of law", specifically non-national and transnational laws (such as the lex mercatoria) by arbitral tribunals, indicates that the United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Commercial Arbitration can similarly allow tikanga Māori to be applied in arbitral proceedings. Accordingly, in niche situations, the application of tikanga Māori in arbitral proceedings provides an attractive and practical option.

This article considers the extent to which, and how, tort law continues to serve the community despite widespread ignorance of its doctrines. It starts from the premise that tort law's design bars the layperson's access to knowledge of tort law in four respects, and that this runs contrary to the New Zealand legal system's commitment to the rule of law. In an effort to resist this conclusion, it considers whether there is cause to recalibrate our understanding of the rule of law's aspiration that the law be knowable. Specifically, it evaluates the degree of knowability which we should expect of tort law as compared to other branches of law, and the content which the non-lawyer should be able to know. It focuses on whether the rule of law's aspiration requires that tort law, as tort law, should be knowable so as to be accessible, or whether it is sufficient that the non-lawyer has knowledge of social norms which are given effect in tort law through the standard of the reasonable person. It concludes that we should not tolerate a lower degree of knowability in tort law, and that while the way in which tort law tracks social norms through the standard of the reasonable person carries tort law some way towards the ideals of legality, it cannot wholly allay our concerns about tort law's unknowability.