Volume 2, Issue 4 (forthcoming)

What a year 2025 has been! The world has seen much chaos, and the rule of law has been continually placed under the microscope. Aotearoa New Zealand has not been immune; it remains crucial for lawmakers, judges, and scholars to ensure the law responds to the needs of the populace. This final edition of the Auckland Law School SSRN e-journal for 2025 focuses on applications of the law to issues affecting New Zealanders like taonga, the potential for AI to influence sustainable public procurement, and death and gift duties under New Zealand tax law. It also includes broader reflections on negligence class actions in Australia, jurisprudential reflections on interlegality and rules of cognition, and a book review of Paine’s 2024 monograph The Functions of International Adjudication and International Environmental Litigation. 

As we bring 2025 to a close I wish to express my thanks to you, the reader, for supporting this e-journal and our Research Paper Series. 

I wish you a safe and restful end of year break with your loved ones. Please do not hesitate to contact us at ssrn.law@auckland.ac.nz

– Dr Joshua Yuvaraj, Academic Editor

Taonga: Te Reo Māori and Mātauranga Māori
Jayden Houghton
Maria Bargh and Carwyn Jones (eds) 50 Years of the Waitangi Tribunal (Huia and Te Tākapu, Wellington, 2025)

The chapter makes three arguments. First, the chapter argues that a Tribunal inquiry supports a confluence of the political wills to reinforce claim kaupapa via two key functions:

(1) Inquiries are bastions of claim kaupapa, which must be kept alive and beating for there to be an effective political response to the inquiry.

(2) Inquiries are magnets for political will — they magnetise political will amenable to claim kaupapa around a centre, and magnetise existing political will to align more closely with claim kaupapa. For example, inquiries may draw academic attention and research funding to the claim kaupapa and be a vehicle for incorporating the claim kaupapa into teaching syllabi and student scholarship.

Secondly, the chapter argues that a Tribunal inquiry is most likely to lead to an effective response when the completion of the inquiry (when the Tribunal’s final report on the claim) coincides with a confluence of the political wills of Māori and the Crown to support the applicable claim kaupapa. Therefore, the Tribunal principally supports effective responses to claim kaupapa by completing robust inquiries, not in making useful recommendations (which may or may not be influential).

Coincidence may come in various forms. Sympathetic coincidence is where the political wills of Māori and the Crown were fairly aligned with the claim kaupapa during the inquiry such that the report immediately coincides with the confluence of the political wills to support the claim kaupapa. Suspended coincidence is where one or both of Māori and the Crown have not declared their position on the claim kaupapa on the release of the report, but after some delay, there is a confluence of the political wills to support the claim kaupapa. Supervened coincidence is where one or both of Māori and the Crown opposed the claim kaupapa on the release of the report but eventually, there is a confluence of the political wills to support the claim kaupapa. Superannuated coincidence (or settled incoincidence) is where there has been no confluence of the political wills to support the claim kaupapa, and, after some time, the report is no longer considered suitable for application in the political arena. Therefore, the horizon for sustained and supervened coincidences may not be indefinite.

Coincidence may be sustained or sporadic. Coincidence and its sustenance may be supported by stakeholders.

Thirdly, the chapter argues that the potential effectiveness of a response may be maximised when Māori and the Crown empower Māori to lead the response.

Do Mass Tort Negligence Class Actions Adequately Compensate Victims and Effectively Deter Tortfeasor Wrongdoing?
Nikki Chamberlain and Michael Legg
(2025) 14 Laws 71

The objectives of the class action procedural device and the tort of negligence overlap in that they both seek to compensate victims for their loss and, according to some, they both seek to deter tortfeasor wrongdoing. However, in practice, does the class action procedure facilitate the fulfilment of these dual aims? This article explains how the class action aids compensation and deterrence, but also addresses the significant issues that hinder the class action's effectiveness in meeting its compensatory and deterrence aims in an Australian and New Zealand context. It concludes by laying the foundation for further research to improve the effectiveness of class actions or by possibly adopting supplementary or alternative remedial/regulatory procedures. 

Leveraging AI for Sustainable Public Procurement: Opportunities and Challenges
Marta Andhov, Nicole Darnall and Alexandra Andhov
(2025) 6 Frontiers in Sustainability

Even though sustainable public procurement is critical to achieving global climate goals, most public organisations struggle to implement it. While artificial intelligence holds promise for addressing these challenges, its use in the public sector remains limited and often confined to discrete stages of the procurement lifecycle. This paper critically examines artificial intelligence's potential to support sustainable public procurement across the full procurement lifecycle - from defining needs and assessing markets to issuing tenders, evaluating suppliers, and refining practices. Further, we examine the limitations and challenges posed by artificial intelligence technology for public procurement managers, recognising concerns related to transparency, fairness, governance, and the impacts of artificial intelligence driven decisions on market competition. Drawing on numerous examples in the practice, our findings show that artificial intelligence can be a powerful bridge between high-level sustainability aspirations and practical implementation, offering procurement officials the ability to access, interpret, and apply vast amounts of sustainability information across the entire procurement lifecycle. Our results provide understanding necessary to leverage artificial intelligence toward advancing sustainability across the entire procurement lifecycle, while highlighting the need for transparent, data-rich systems and collaborative engagement among technical experts, procurement professionals, and compliance and sustainability specialists. This analysis offers actionable insights into how AI can transform sustainable public procurement from aspiration to operational reality, enabling the public sector to use its considerable purchasing power to contribute meaningfully to global climate action.

Intepreting the Principles of the Treaty of Waitangi in accordance with International Indigenous Peoples' Rights, Human Rights and Climate Change
Claire Charters
Waitangi Tribunal

1. This evidence addresses Aotearoa New Zealand’s obligations under international law regarding Indigenous peoples in the context of climate change. After introducing briefly some context to Indigenous peoples and their experiences of climate change internationally and domestically, I focus on:

1.1. State duties under Indigenous peoples’ rights and human rights law with respect to climate change;

1.2. Related international law on climate change, Indigenous peoples’ rights and human rights, especially associated with the UN Framework Convention on Climate Change (UNFCCC);

1.3. An example of the way in which international legal duties with respect to climate change, Indigenous peoples’ rights and human rights coalesce to create concrete obligations for Aotearoa New Zealand to respect Māori self-determination and consult with Māori: in the development, negotiation and presentation of Aotearoa New Zealand’s policies in the international climate change context, including under the UNFCCC. 

Post-Sale Similarity and a Likelihood of Confusion: Lessons for New Zealand
Nicole Roughan
Rob Batty
(2025) New Zealand Intellectual Property Journal

The United Kingdom Supreme Court’s judgment in Iconix Luxembourg Holdings SARL v Dream Pairs Europe Inc(Iconix) considered the impact of post-sale circumstances when assessing trade mark infringement. This decision is likely to be persuasive when considering trade mark infringement disputes in New Zealand, as well as in other British Commonwealth jurisdictions. In this article, I explain, contextualise and critically evaluate the findings of the UK Supreme Court regarding the relevance of post-sale circumstances when addressing mark similarity and the relevance of post-sale confusion when assessing a likelihood of confusion.

However, the main contribution of the article is to interrogate the law regarding infringement under s 89 of New Zealand’s Trade Marks Act 2002 (2002 Act). Viewing Iconix through a comparative lens, I demonstrate that New Zealand courts’ current approach to s 89 is unsettled and conceptually ambiguous. As a result, it is difficult to determine (if Iconix were to be followed) how post-sale circumstances would be sensibly factored into assessing infringement. Using Iconix as a launching pad, I put forward a model for interpreting s 89 of the 2002 Act and, in so doing, suggest a way for New Zealand courts to cogently factor post-sale context into the assessment of infringement.

Escaping Precedent: Interlegality and Change in Rules of Recognition
Nicole Roughan
Endicott et al (Eds) Philosophical Foundations of Precedent, (Oxford University Press, 2023)

Avoiding a precedent does not typically alter a legal system’s ultimate rules of recognition. Individual precedents are binding on their particular facts, but may be straightforwardly overruled, distinguished, found to be unworkable, or per incuriam, without unsettling the recognition of sources of valid law in that system. This chapter examines how, in contrast to such avoidance, an escape from precedent is effected through changes in a legal system’s ultimate rules of recognition. The escape examined in this chapter arises from a type of ‘interlegality’ found in the interaction of state and Indigenous legal orders in common law settler states. The example of state – Indigenous interlegality in New Zealand is relied upon to illustrate escapes from precedent that give effect to the content of Indigenous law, the authority of Indigenous legal officials, or the sources of Indigenous legalities. Such changes suggest that the operation of precedent can provoke reflective changes to a legal system’s rule of recognition, posing a challenge to claims that such a rule is changed primarily by accident.

Book Review of The Functions of International Adjudication and International Environmental Litigation, Paine, J., 30 May 2024, Cambridge University Press. 338 p. (Cambridge Studies in International and Comparative Law)
Caroline Foster
(2025) 4 The Law and Practice of International Courts and Tribunals (forthcoming)

Joshua Paine’s valuable contribution on the evolution of international adjudication comes at a time when international adjudication is more central in international relations than ever before. Concerns about the legitimacy of international courts and tribunals ("tribunals") have been on the rise in international economic law especially, and numerous alternative forms of dispute resolution and compliance assurance are on the table.