¶ 301
Overview
Scope of the chapter. A Cook Islands trust, LLC or foundation is only as strong as the courts that will apply the statute under which it was formed. This chapter describes those courts. The High Court of the Cook Islands, sitting in Rarotonga, hears every claim brought in the Cook Islands against an international trust, its trustee or its property. The Court of Appeal of the Cook Islands hears appeals from the High Court, with a bench drawn largely from senior New Zealand judges. The Judicial Committee of the Privy Council in London hears appeals from the Court of Appeal with leave. The chapter examines the constitutional basis of each court, its composition and jurisdiction, the routes of appeal between them, the procedure by which a creditor's claim against an international trust is brought and decided, the treatment of foreign judgments and foreign courts, and the practical features of litigation in a small jurisdiction whose judges often sit from abroad.
Why the courts matter to the planner. A planner who chooses Cook Islands law for a trust is choosing more than a statute. The planner is choosing the forum in which a creditor must sue, the judges who will read the statute, the procedural rules that will govern a freezing application, and the appellate courts that will settle any question the statute leaves open. The protective provisions of the International Trusts Act 1984 depend for their effect on a court that will apply them as written and will refuse to give effect to foreign judgments that contradict them. They also depend on a court that is seen abroad as independent, because a protective statute applied by a court of doubtful independence invites the foreign court to disregard the result. The Cook Islands record on both points is examined in this chapter.
Three courts, one Constitution. The three courts rest on Part IV of the Constitution of the Cook Islands, which establishes the High Court and the Court of Appeal, fixes the qualifications, appointment, tenure and removal of judges, defines the routes of appeal and provides for an appeal to Her Majesty in Council. Const. of the Cook Islands arts. 47–63. The Judicature Act 1980–81 and the rules made under it regulate practice and procedure, and the Privy Council (Judicial Committee) Act 1984 prescribes the cases in which an appeal lies to the Privy Council. The International Trusts Act 1984 adds its own rules for proceedings concerning international trusts, which override the general law where they apply (see infra ch. 5).
Plan of the chapter. The chapter proceeds as follows. Part IV of the Constitution and the judiciary it establishes (see infra ¶ 310). The High Court, its divisions and its civil jurisdiction (see infra ¶ 320). The Court of Appeal and the routes of appeal to it (see infra ¶ 330). The Privy Council and the conditions of appeal (see infra ¶ 340). The procedure in a claim against an international trust (see infra ¶ 350). The leading cases (see infra ¶ 360). Foreign judgments, foreign courts and cross-border assistance (see infra ¶ 370). Judges, counsel and the practice of litigation in Rarotonga (see infra ¶ 380). The chapter closes with the planning implications (see infra ¶ 390).
Relation to later chapters. This chapter describes the courts and their jurisdiction. The substantive rules that the courts apply in creditor litigation are examined in Part V: the fraudulent-disposition claim under section 13B (see infra ch. 21), the bars to suit and the conditions on commencing proceedings (see infra ch. 22), the non-recognition of foreign judgments under section 13D (see infra ch. 23), and litigation procedure, freezing orders and disclosure in detail (see infra ch. 24). The treatment of Cook Islands structures in foreign courts, including contempt and repatriation orders, is examined in chapter 25 (see infra ch. 25). The sources of law that the courts apply, including New Zealand legislation and English authority, are examined in chapter 2 (see infra ch. 2).