In New Zealand arbitration is governed by the Arbitration Act 1996. The Act is modelled on what is known as the UNCITRAL model law. This is the Model Law on International Commercial Arbitration adopted in 1985 by the United Nations. The Law Commission in its report, NZLC R20 on arbitration recommended adapting the UNCITRAL model law so that:
Parliament adopted the Law Commission’s recommendations when it passed the 1996 Act. The Act has been amended since then to clarify and extend the powers of the arbitrator. Under the Act the arbitrator has the powers of the High Court in its civil jurisdiction to grant relief.
The comments which follow are relevant to “domestic” arbitrations under the 1996 Act.
Parties can enter into an agreement to arbitrate a future dispute in the event that it arises, or if no such agreement exists they can agree to arbitrate after the dispute has arisen. Typically commercial contracts now contain dispute resolution provisions which state that in the event of a dispute the parties shall first try and mediate the issues but if that should fail then the issue will go to arbitration.
Of course for construction contracts the Construction Contracts Act 2002 dispute resolution processes are likely to apply. Sometimes particular industries prescribe their own methods of dispute resolution which may include a hybrid form of arbitration. or other forms of [?] private resolution. See for example the Sharemilking Agreements Order 2001 and the Weathertight Homes Act.
Arbitration agreements often include a process for appointing an arbitrator when the parties cannot agree.
Where the parties cannot agree on an arbitrator, and where no process for appointment has been agreed such as appointment by the President of the Arbitrators' and Mediators' Institute of New Zealand then the Arbitration Act 1996 comes into play. It sets out the process by which the second schedule to the 1996 Act works to ensure the appointment of an arbitrator and when the Court will appoint an arbitrator.
Arbitration can offer time savings and flexibility unavailable through court process. For example the parties are given the opportunity to agree on their arbitrator who may be a person specialising in arbitration process and procedure and/or sometimes having specialist industry knowledge.
Unlike court the fact finding and decision making processes in arbitration can be much more flexible and have the potential for significant cost savings.
Privacy can be a significant advantage to the parties. The public have no right to attend an arbitration which is a private process. That privacy is further protected by the manner in which the information may be treated. (CK appeal management)
Confidentiality of information is given certain protections under the Arbitration Act 1996 (‘the Act’), including where a case goes on to appeal before the High Court. Confidential information is defined under the 1996 Act in the 2007 amendment. There is a presumption in s14B of the Act that confidential information will not be disclosed by either the parties or the arbitral Tribunal. This presumption is opposite to court process where the general presumption is that evidence and pleadings will be open to the public gaze.
The level of formality introduced into the arbitration process can be varied to suit both the nature of the dispute and party needs. So, for example, a dispute could be heard at the site of the dispute. Sometimes the arbitrator can determine the dispute just by reading all the documents. This is no hearing and there may be no submissions. Witnesses may still give evidence but it is given in documentary form. The parties may decide that this course is appropriate without the need for witnesses to give evidence and sometimes even without the need for submissions from the parties. Usually where time saving processes are introduced it is in consultation with the arbitrator. Where the parties cannot agree process issues the arbitrator may direct process and procedure for the fair and efficient management of the dispute. Whatever process is adopted it is the duty of the arbitrator to ensure that natural justice is observed.
I know that time is money. once I am appointed it is my practice to call a preliminary meeting between the parties and as quickly as possible, usually within several days of my appointment. The preliminary meeting allows for the entire arbitration process to be programmed in an orderly way. It helps the parties to input into the process and establishes a timetable for things to be done. This preliminary meeting and if necessary further meetings, help toward the smooth management of the entire arbitration process.
Although the agenda item list may look formidable, in fact the entire agenda can usually be run through in less than an hour. It does help if the parties are prepared and for that reason I encourage the parties to look at the agenda items before the meeting.
My daily arbitration rate is $5,000 plus GST per day. This sum also covers the first teleconference and the first hour of the preliminary meeting. I also charge for reasonable disbursements such as communication costs, travel – taxis, airfares and accommodation if out of Wellington. For reading, additional meetings and other preliminary work or sitting beyond 6.00pm I charge $500 per hour plus GST. Typical sitting hours are 9.30am to 5.00pm, with lunch and tea breaks, but I am flexible and try to accommodate party and counsel needs.
I will have allocated the agreed day or days for the arbitration. Where no more than one day is allocated then if the arbitration issue is settled up to five working days prior to the fixture then no charge will be made for that allocated day. I may need to charge for preparation time and disbursements where relevant. If the matter settles within five working days of the fixture I reserve the right to charge for the allocated day and of course for any additional preparation time and disbursements incurred. I do not charge if I am able to fill the day.
Depending on timing I reserve the right to charge for the allocated day. I also try to treat the parties fairly and may be able to reduce my fee.
My terms of contract for mediations and arbitrations are different and are set out on this website. They may only be varied by prior written and signed agreement between me and the parties. By “prior” I mean, prior to my written acceptance of appointment as mediator or arbitrator.
I am happy to receive all documents by email to my address: email@example.com
My receipt of emailed documents can be taken to have been effected by my acknowledging the email on reply.
My courier address is available upon request.
My postal address is PO Box 5048, Wellington 6145.
My mobile number is 021 465 544.
If you would like to discuss the idea of arbitrating your dispute or would like to discuss my possible appointment you are welcome to contact me.