Recommended arbitration clauses

Future disputes

 

For contracting parties who wish to have future disputes resolved by arbitration under the auspices of NZDRC the following clause is recommended for inclusion in contracts.

 

“Any dispute or difference arising out of or in connection with this contract, or the subject matter of this contract, including any question about its existence, validity or termination, shall be referred to and finally resolved by arbitration in accordance with the Arbitration Rules of the New Zealand Dispute Resolution Centre (NZDRC) for the time being in force."

 

Existing disputes

 

If a dispute has already arisen and there is no agreement between the parties to determine the dispute by arbitration, the parties may enter into an agreement for those purposes and either of the following forms of agreement are recommended. The words in square brackets should be deleted/completed as appropriate.

 

1. Expedited Commercial Arbitration

 

“The Claimant and the Respondent[s] are parties to [define legal relationship] entered into on or about [enter date].

 

The Claimant and the Respondent[s] have agreed that [all matters in dispute between them/the matters in dispute between them set out in the Schedule attached hereto] shall be referred to arbitration for final determination in accordance with the New Zealand Dispute Resolution Centre (NZDRC) Rules for Expedited Commercial Arbitration [ECA45/ECA60/ECA90] and that the parties will be bound by the findings of the said arbitration subject only to such rights as the parties may have under Articles 33 & 34 of the First Schedule to the Arbitration Act 1996 (the Act) and clauses 5(1)(b) & (c) of the Second Schedule to the Act.

 

The arbitration shall be by a sole arbitrator to be agreed upon by the parties. If the parties are unable to agree upon the identity of an arbitrator within five (5) working days from the date of this agreement, then the arbitrator shall be appointed by NZDRC upon the application of any party.”

 

2. Domestic Commercial Arbitration

 

Note: Please note that this agreement may be found at Appendix 4 to the Arbitration Rules of the New Zealand Dispute Resolution Centre (NZDRC). The Supplementary Agreement to use the AMINZ Arbitration Appeal Tribunal may be found at Appendix 5 to the Rules.

 

 

ARBITRATION AGREEMENT

 

BY AN AGREEMENT made the                              day of                                   2010

 

 

BETWEEN (Name of Claimant)

 

 

AND (Name of Respondent)

 

The Claimant and the Respondent are parties to (define legal relationship):

 

 

entered into on or about (enter date):

 

 

for, or in relation to (enter detail):

 

 

The Claimant and the Respondent have agreed that [all disagreements and matters in dispute between them/the matters in dispute between them set out in the Schedule attached hereto (delete one)] shall be referred to arbitration before a sole arbitrator for final determination in accordance with the Rules of Arbitration of the New Zealand Dispute Resolution Centre (the Rules) and that the parties will be bound by the findings of the said arbitration subject only to such rights as the parties may have under Articles 33 & 34 of the First Schedule to the Arbitration Act 1996 (the Act) [and Clause 5 of the Second Schedule to the Act (delete if parties wish to invoke AMINZ Arbitration Appeals Rules – See Appendix 5)].

 

The Claimant and the Respondent agree to use their best endeavours to agree an arbitrator within 5 working days of the date of issue of a Notice of Arbitration in terms of the Rules.

 

The parties agree to the use of email for the service of all notices and for all legal requirements in connection with an arbitration pursuant to this agreement.

 

 

Notice to the Claimant:

 

Notices to the Claimant shall be given to an address for service which is:

 

 

 

 

Phone: + 64

Fax: + 64

Mobile: + 64

 

E-mail:

 

Notice to the Respondent:

 

Notices to the Respondent shall be given to an address for service which is:

 

 

 

 

Phone: + 64

Fax: + 64

Mobile: + 64

 

E-mail:

 

 

I certify:

THAT I have read and understood this Arbitration Agreement and the NZDRC Arbitration Rules.

 

THAT the optional provisions of the Second Schedule to the Arbitration Act 1996 do apply to this Arbitration Agreement [save for the parties expressly agree to exclude all rights under Clause 5 of the Second Schedule to the Arbitration Act 1996 to appeal to the High Court on any question of law arising out of any award made under these Rules and to refer any such appeal to the Arbitrators’ and Mediators’ Institute of New Zealand Inc. Arbitration Appeals Tribunal (delete if parties do not wish to invoke AMINZ Arbitration Appeals Rules ].

 

THAT I agree to be bound by the terms of this Arbitration Agreement and the NZDRC Rules of Arbitration.

 

 

DATED this                          day of                                  2010

 

 

 

______________________________

 

SIGNED by, for, or on behalf of the Claimant

 

Name and position of signatory

 

In the presence of:

 

Name

 

Address

 

Occupation

 

 

 

 

______________________________

 

SIGNED by, for, or on behalf of the Respondent

 

Name and position of signatory

 

In the presence of:

 

Name

 

Address

 

Occupation

 

 

 

 

 

SUPPLEMENTAL AGREEMENT TO APPEAL TO AMINZ ARBITRATION APPEAL TRIBUNAL FROM AWARD MADE UNDER NZDRC ARBITRATION RULES 

 

1.0 The parties hereby exclude all rights under Clause 5 of the Second Schedule to the Arbitration Act 1996 (the Act) to appeal to the High Court from any Award made under the NZDRC Arbitration Rules, including any Award or ruling of the Arbitration Appeal Tribunal (AAT).

 

2.0 The parties further agree that an appeal may be taken by any of them under the Arbitrators’ and Mediators’ Institute of New Zealand Inc. (AMINZ) Arbitration Appeal Rules as applicable at the time of appeal (AAA Rules) from any arbitral Award made under these Rules. Any appeal shall be conducted in accordance with the requirements of the AAA Rules.

 

3.0 The parties further agree not to seek to enforce in New Zealand or in any other jurisdiction in terms of Article 35 of the First Schedule to the Act, any Award that may be subject to an appeal to an AAT unless or until the time for filing an appeal under the AAA Rules has expired and, if an appeal is filed, there has been a Final Award by an AAT under the AAA Rules or the appeal has been withdrawn, abandoned, or dismissed.

 

4.0 The parties agree that any AAT appointed as a result of any appeal under the AAA Rules, shall, subject to any limitations expressed in the AAA Rules, have all the powers exercisable by the High Court on an appeal to that Court under Clause 5 of the Second Schedule to the Act save that the AAT shall not have the power to remit the Award back to the original Arbitral Tribunal where that tribunal is unwilling or unable to accept the remission. In the latter case, the AAT itself in its discretion may decide the issues(s) which would otherwise have been remitted.


DATED this                         day of                                 2010



______________________________

SIGNED by, for, or on behalf of the Claimant

Name and position of signatory for Claimant:

In the presence of:

Name

Address

Occupation





____________________________________

SIGNED by, for, or on behalf of the Respondent

Name and position of signatory for Respondent:

In the presence of:

Name

Address

Occupation





 

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