Faculty of Law Research Paper Series, Volume 2, Issue 1 (March 2025)

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Note from the Editor

Welcome to Volume 1 of the Auckland Law Faculty e-journal for 2025. As the Academic Editor for the Faculty's Research Paper Series. I am honoured to be able to regularly present our best research to the world, freely available online.

2025 continues to highlight the need for informed research to respond to the challenges of AI, misinformation, skewed wealth disparities, and the abuse of power. Our first e-journal volume for the year presents potential responses to these problems. These include ruminations on the limitations of political authority (Arie Rosen) and an evaluation of the OECD’s role in tax regulation (Michael Littlewood). Private law analyses in response to these issues include examinations of visual contracting (Marta Andhov), tort law generally (Jodi Gardner), the regulation of third-party class action litigation funding (Nikki Chamberlain) and a tort of misappropriation of culture (Jayden Houghton) as potential solutions to these contemporary challenges. Meanwhile, contemporary intellectual property issues also invite balanced policy responses, whether in relation to trade mark law and Te Tiriti o Waitangi (Rob Batty) or copyright law and AI-generated works (Joshua Yuvaraj).

Dr Joshua Yuvaraj | Academic Editor | University of Auckland Faculty of Law SSRN Research Paper Series.

1. "How to Address the Regulation of Third-Party Litigation Funding of Class Actions?"

(2025) 141 L.Q.R. 131
NIKKI CHAMBERLAIN
VICKI C. WAYE (University of South Australia - Justice & Society)
VINCE MORABITO (Monash University)

Class actions are controversial because they impose high transaction costs on class member remediation,and are often driven by overtly entrepreneurial lawyer and third-party litigation funder (TPLF) teams. There is a view that unless checked, these teams may advance interests that diverge from those of class members. Indeed, the potential for conflicts of interest between funders, lawyers and litigants more generally has led to the announcement of a review of the litigation funding sector by the Civil Justice Council (CJC), which, among other things, will consider whether, and how, and by whom TPLF should be regulated. While the CJC review is not confined to the funding of class actions, due to the attenuated nature of class member involvement in class proceedings, conflicts of interest in this area of practice can be more complex than in the traditional tripartite funder-lawyer-party setting, and thus arguably warrant particular attention from the CJC. To help inform the CJC’s inquiry, this article therefore explores whether special consideration of class action TPLF is required and the regulatory options that might be available considering reforms in Australia and New Zealand.

2. "Political Reasons and the Limits of Political Authority"

Legal Theory, volume 29, issue 1, 2023
ARIE ROSEN

Authority is a normative power to create duties in others. The most plausible accounts of this general power relate it to existing reasons the subjects of authority have with which authoritative directives can help them comply. Such accounts lead some theorists to ascribe a morally ambitious function to political institutions. This article argues against such theories. It defends political authority as a modest normative power, constrained by the type of reasons with which it can help its subjects comply. This modest account differs from other liberal views in the limits it imposes on the exercise of political authority. It casts doubt on familiar limits that protect an individual private sphere. Instead, it imposes a condition of moderation. It suggests that legitimate exercises of political authority should leave space for individuals to be motivated by reasons that political institutions do not and should not mediate for them.

3. "A Roadmap to Simplify Procurement?—The Potential of Visual Contracting in Australian and Danish Systems"

(2025) 34 Public Procurement Law Review, Issue 1, pp 47-73
MARTA ANDHOV
CAMILLA BAASCH ANDERSEN (The University of Western Australia Law School)
HEBBARD TIM

Public procurement plays a crucial role in driving economic activity and innovation, yet its complexity often creates barriers for stakeholders, particularly small and medium enterprises. This article explores how visual contracting—using diagrams, illustrations, and other graphic tools—could improve clarity and accessibility in public procurement processes. By offering a comparative analysis of systems in Denmark and Australia, the article examines the practical benefits of visual contracting, such as enhanced comprehension, reduced disputes, and improved communication between contracting parties. The discussion includes an evaluation of the legal and practical considerations, including enforceability, costs, and challenges of implementation. With examples and blueprints for applying visual contracting, this research provides a thoughtful exploration of its potential to complement existing procurement practices. The findings aim to inform policymakers, legal practitioners, and procurement officials about the opportunities for simplification and collaboration in public contracting. This article offers an engaging perspective on a novel approach to streamlining procurement processes, grounded in practical insights and comparative analysis.

4. "A Tort of Misappropriation of Culture"

Jayden Houghton "A Tort of Misappropriation of Culture" (2024) 29 Torts Law Journal
JAYDEN HOUGHTON

Cultures are regularly misappropriated without legal recourse. Whilst the World Intellectual Property Organization is developing an international framework to protect culture, its progress is slow. This article proposes a tort of misappropriation of culture, using the tort of misappropriation of personality, which has been recognised in the United States, and judicially considered but not yet recognised in New Zealand, as a template for the tort. First, it identifies the legal gap by explaining how New Zealand’s recognised torts and relevant statutes fail to protect culture from misappropriation. Secondly, it explains the tort of misappropriation of personality. Thirdly, it outlines elements, defences and remedies for a tort of misappropriation of culture. Finally, it applies the tort in two case studies. The article will be of particular interest to scholars and lawmakers in common law countries where Indigenous peoples are calling for enhanced protections for their knowledges and cultures.

5. "Trade Mark Law After Wai 262: Giving Weight to Te Tiriti in Trade Mark Law Beyond Protecting Against Offence"

Forthcoming in Jayden Houghton and David V Williams (eds) Protecting Indigenous Knowledge: Perspectives from Aotearoa New Zealand (Auckland University Press, 2025)
ROB BATTY

In 2011, the Waitangi Tribunal released its landmark Wai 262 report. This report considered broad-ranging claims that the Crown had breached its guarantee under the te Tiriti o Waitangi to allow Māori to exercise tino rangatiratanga (highest chieftainship) over taonga katoa (treasured or valued things). The Māori language (te reo Māori) is recognised as a taonga. The report considered that trade mark law inadequately protected kaitiaki (guardian) interests that were fundamental to the promise of tino rangatiratanga. The Trade Marks Act 2002 (2002 Act) was enacted before the Wai 262 report. Conspicuously, the 2002 Act makes no mention of te Tiriti o Waitangi. It does, however, include a provision (s 17(1)(c)) which prohibits the registration of trade marks that would be offensive to Māori. 

This chapter moves away from the established literature that has examined s 17(1)(c) and instead critically explores how other areas of New Zealand trade mark legal doctrine, after the Wai 262 report, have been adapted to give weight to the Crown’s obligations under te Tiriti. I focus on the registration of te reo words and examine four areas: distinctiveness, “other circumstances”, relative grounds and proprietorship. I demonstrate that New Zealand trade mark law is being adapted in certain areas to broadly reflect the principles of te Tiriti. I also argue that there is potential for New Zealand trade mark law to be adapted in other areas. However, I urge some caution when evaluating the effectiveness of such adaptations in light of the Crown’s obligations under te Tiriti. Paradoxically, some adaptations may actually limit the ability of Māori to exercise tino rangatiratanga over te reo Māori words. This underscores how further adaption and legislative reform of trade mark law — while well-meaning — is unlikely to ever be a full answer to Māori concerns as to the Crown’s obligations under te Tiriti.

6. "The Future of Tort Law: Property, Technology, And Most Importantly, People Reflections on Donal Nolan, Questions of Liability (Hart, 2023)"

(2025) 9(2) Journal of Law, Property and Society 47
VICTORIA EVANS (King's College London - The Dickson Poon School of Law) 
JODI GARDNER

This Article reviews, reflects, and builds on, Donal Nolan’s Questions of Liability; a book made up of a collection of 12 of Nolan’s most influential pieces (and one new addition). In doing so, we adopt two themes; (1) we explore the ability of the law of tort, as advocated by Nolan, to adapt to new legal and social challenges relating to property; and (2) we seek to focus on the people in tort and property dialogue and add this ‘class’ back into Nolan’s writing. We explore both themes in relation to contemporary product liability, which is explored in chapter 14 (the only previously unpublished chapter), and through an exploration of how Nolan’s scholarship on nuisance could be used to combat the cladding scandal.

7. "THE OECD AS A LAWMAKER, THE RULE OF LAW AND THE INSTRUCTIVE CASE OF NEW ZEALAND"

Peter Harris and Dominic de Cogan, eds, Tax, Public Finance and the Rule of Law, Bloomsbury/Hart, 2025, 251–267
MICHAEL LITTLEWOOD

The New Zealand government has been a wholehearted supporter of the OECD’s BEPS project since its inception in 2012 and it has amended the country’s tax legislation so as to implement most of the OECD’s recommendations relating to BEPS. For Parliament to enact rules aimed at preventing avoidance is of course nothing new. What is new, however, is that some of these amendments refer expressly to documents produced by the OECD in such a way that they, or, at least, parts of them, are now part of the law of New Zealand – a drafting technique called ‘incorporation by reference’.

In particular, first, the Income Tax Act 2007 now contains rules dealing with hybrids, and these rules incorporate-by-reference parts of the OECD’s two hybrids reports (the Hybrids Mismatch Report and the Branch Mismatch Report). Secondly, the transfer-pricing rules contained in the Income Tax Act have been amended so as to incorporate-by-reference parts of the OECD’s Transfer Pricing Guidelines. Thirdly, the Tax Administration Act 1994 has been amended so as to incorporate-by-reference parts of the Country-by-Country reporting recommendations set out in the Transfer Pricing Guidelines. Fourthly, and most importantly, the Income Tax Act has been amended so as to incorporate-by-reference not only the whole of the OECD’s Pillar Two Model GloBE Rules (the Model GloBE Rules or the Model Rules) (subject to some minor qualifications) but also the whole of the Commentary on them.

The incorporation in domestic tax law of text produced by an organisation such as the OECD is novel and its appropriateness is not self-evident. The first aim of this chapter, therefore, is to examine its likely efficacy, as a matter of tax law reform. Moreover, whereas some of the legislation’s references to OECD materials are static (referring to documents published prior to the enactment of the legislation), others are ambulatory – that is, the reference is to the document as amended from time to time by the OECD. This ambulatory approach will mean that any revision of the document by the OECD will of itself constitute an amendment of New Zealand law. This might be a good idea, but for the New Zealand Parliament to have effectively delegated legislative power to a body over which it has no control whatever seems to be jurisprudentially and constitutionally novel, and to require some refinement of the notion of the rule of law, as traditionally understood – especially since it seems safe to assume that the OECD would be barely even aware that, in revising its documentation, it would be changing New Zealand law. The second aim of the chapter, therefore, is to examine this aspect of the amendments.

8. "Submission: UK Copyright and Artificial Intelligence Consultation 2024-25"

JOSHUA YUVARAJ

This is a submission to the UK’s Copyright and Artificial Intelligence Consultation, which closed on 25 February 2025. In this submission I argue the existing computer-generated works exception in s 9(3) of the Copyright, Designs and Patents Act 1988 (‘CGW’) which currently covers works without a human author, attributing authorship to the person who made the arrangements necessary for the production of the work) should be amended to directly cover works produced using generative artificial intelligence (‘GAI’). I ground the argument in an assessment of GAI’s ‘creative’ capacities using creativity theory – GAI is more than a tool but not fully creative. As copyright protection focuses on cultivating human creativity, copyright should protect GAI outputs that evidence human input (i.e. prompts). However, the duration of such protection should be reduced to reflect the lopsided balance of creative ‘labour’ between a user (entering prompts) and the AI (processing prompts via algorithms trained on datasets). The current CGW exception is a balanced solution in principle due to its reduced duration relative to most other original works (50 years vs 70 years after the author’s death). However, I recommend various amendments to the provision to address issues of authorship and originality, so that it can more expressly target GAI-produced works with the requisite human input.