ARBITRATION SERVICES

The settlement of disputes by arbitration is an important feature of the domestic commercial and legal landscape.

The primary objective of modern commercial arbitration is the fair, prompt, and cost effective determination of any dispute, in a manner that is proportionate to the amounts in dispute and the complexity of the issues involved.

To ensure that objective is met in the context of domestic arbitration, the New Zealand Dispute Resolution Centre (NZDRC) provides a range of arbitration services to meet the needs and requirements of commercial parties, including:

  • ad hoc arbitrations;
  • institutional arbitrations under the NZDRC Rules; and
  • arbitrations under ‘other’ institutional rules.
Ad hoc arbitration

Ad hoc arbitration is arbitration conducted under the Arbitration Act 1996 by the arbitral tribunal with only limited institutional oversight and support provided by NZDRC.

This service is particularly suited to parties to existing disputes who:

  • have agreed to refer their disputes to arbitration and who want the flexibility to craft their own bespoke arbitration process and timetable in consultation with the arbitral tribunal; or
  • parties to extant litigation proceedings who wish to refer the subject matter of those proceedings to arbitration to obtain procedural, time and cost certainty and/or to preserve confidentiality.
Fees capped

To provide financial certainty for parties (and their legal advisers) and to ensure that the cost of any ad hoc arbitration undertaken under its aegis is proportionate to the amount in dispute, the arbitrator’s fees are capped based on the amount in dispute.

Limited institutional oversight

NZDRC’s limited administrative functions and duties in relation to ad hoc arbitrations undertaken under its aegis may include, among other things, any or all of the following, as and when required:

  • providing a shortlist of arbitrators from which the parties may select the arbitral tribunal, where such is requested by the parties;
  • appointing members of the arbitral tribunal where the parties have agreed to delegate that duty to NZDRC;
  • undertaking conflict and availability checks of possible candidates for appointment to the arbitral tribunal;
  • financial management of the arbitration including administering payments in relation to the fees and expenses of the arbitral tribunal and providing accounting to the parties and the arbitral tribunal for same;
  • determining any Additional Fee challenge that might arise;
  • scrutiny and issuance of awards; and
  • arranging hearing facilities.
Institutional arbitration - arbitration under NZDRC's Arbitration Rules

This comprehensive service is fully administered by NZDRC’s highly experienced secretariat from submission of the notice of arbitration to the issuance of the final award.

NZDRC has developed a suite of Arbitration Rules that are robust and certain, yet innovative in their commercial commonsense approach to challenging issues such as appointment, urgent interim relief, expedited procedures, summary procedures for early dismissal of claims and defences, joinder, consolidation, multiple contracts, confidentiality, representation, mediation, arbitral secretaries, expert evidence, appeals, and costs.

The Rules are intended to give parties the widest choice and capacity to adopt fully administered procedures that are fair, prompt, and cost effective, and which provide a proportionate response to the amounts in dispute and the complexity of the issues involved. They provide a framework and detailed provisions to ensure the efficient and cost effective resolution of disputes and are set out in a manner that is easy to use.

This service is primarily directed to parties to commercial contracts who wish to be able to refer any future disputes or differences that may arise in relation to those contracts, to arbitration, and who want procedural, time and cost certainty in the event of such disputes arising. That is achieved by including NZDRC’s Arbitration Model Clause in commercial contracts at the drafting stage.

However, NZDRC’s Arbitration Rules may be adopted by agreement in writing at any time before or after a dispute has arisen and parties to existing disputes will often agree to refer such disputes to arbitration governed by NZDRC’s Arbitration Rules so that they can be assured of that level of procedural, time and cost certainty that is not always available when simply arbitrating under the provisions of the Arbitration Act.

Parties to an existing dispute that have not incorporated the NZDRC Model Clause into a prior agreement may agree to refer that dispute to arbitration under the NZDRC Arbitration Rules by signing the Arbitration Agreement in the form found at Appendix 2 to those Rules.

Fees capped

To provide financial certainty for parties (and their legal advisers) and to ensure that the cost of arbitration under NZDRC’s arbitration Rules is proportionate to the amount in dispute, the arbitral tribunal’s fees are capped based on the amount in dispute.

Institutional oversight

NZDRC considers itself to be a ‘light touch’ institution. It has powers under the Rules to facilitate the efficient and effective initiation and running of an arbitration where necessary and appropriate, but otherwise, while it maintains administrative oversight and support throughout, the arbitral tribunal has the full conduct of the arbitration in all respects from its constitution until it renders its final award.

NZDRC’s comprehensive administrative functions and duties in relation to arbitrations undertaken under its suite of Arbitration Rules include, among other things:

  • developing and maintaining a suite of Arbitration Rules that reflect domestic and international best practice;
  • maintaining and operating a Registry service through the offices of its executive and Registrars and its website;
  • receiving and processing applications for arbitration;
  • selection and appointment of the arbitral tribunal including, undertaking conflict and availability checks of candidates for appointment to the arbitral tribunal;
  • processing applications for urgent interim relief and appointing a sole arbitrator or presiding arbitrator under urgency;
  • determining any challenges to the arbitral tribunal;
  • in appropriate circumstances, revoking the appointment of an arbitrator and appointing a replacement arbitrator;
  • administering applications for joinder;
  • administering applications for consolidation, including deciding applications for consolidation prior to the constitution of the arbitral tribunal;
  • administering applications for interim measures;
  • administering applications for mediation and appointment of a mediator that is not an arbitrator where parties agree to mediate during the course of an arbitration;
  • case management which includes liaising with arbitrators, parties and their authorised representatives on proper delivery of notices, monitoring schedules and timelines for submissions, arranging hearing facilities and all other matters which facilitate the smooth conduct of the arbitration;
  • financial management of the arbitration including administering payments in relation to the fees and expenses of the arbitral tribunal and any arbitral secretary, and providing accounting to the parties and the arbitral tribunal;
  • determining any exceptional fee challenge that might arise; and
  • scrutiny and issuance of awards.

In ad hoc arbitration undertaken under NZDRC’s aegis, the arbitral tribunal, rather than NZDRC’s Registry staff, would undertake these functions and duties save for making any appointments, scrutiny and issuance of awards, and financial management of the arbitration.

Arbitration under 'other' institutional rules

NZDRC also provides Registry and administrative services in relation to arbitrations conducted under the rules of other arbitral institutions, whether stipulated in the arbitration agreement, or where parties have agreed to NZDRC administering such arbitrations subsequent to the dispute arising.

Please contact our Registry staff to discuss the scope, nature and costs associated with the provision of such services.

NZDRC’s arbitration services second to none

NZDRC is the leading independent, nationwide provider of private commercial dispute resolution and conflict management services in New Zealand.

NZDRC also provides international dispute resolution services through the related entity New Zealand International Arbitration Centre (NZIAC); specialist building and construction dispute resolution services are provided through the Building Disputes Tribunal; specialist family and relationship dispute resolution services are provided through the FDR Centre; and independent and impartial reviews of, and appeals against, decisions and determinations made by public and private sector organisations and government bodies in the exercise of their statutory powers and duties through the Independent Complaint and Review Authority (ICRA).

Our extensive knowledge and experience enables us to develop a comprehensive understanding of the community’s needs and to constantly deliver sound and commercially relevant advice on dispute resolution procedures and options and innovative and effective dispute resolution services.

We focus on informing and educating parties and their advisers about dispute resolution processes so that they may make informed decisions about the dispute resolution options that are available to them.

NZDRC has long established itself as the leader in private dispute resolution in New Zealand and these specialist arbitration services allow NZDRC to continue to offer a world class arbitration offering that is tailored to meet the needs and requirements of commercial parties, and which is fundamentally and purposively directed to ensuring the resolution of commercial disputes in a manner that is private, efficient, cost effective and certain.

The importance of certainty in international arbitration agreements

By Sam Dorne The UK Supreme Court has once again looked at how to determine the law that applies to an international arbitration agreement in the case of Kabab-Ji SAL v Kout Food Group [2021] UKSC 48. An interesting set of facts led the Court to look at an arbitration...

Lifestyles of the rich and famous: polo clubs and (non) party parties

By Maria Cole and Michelle Rubaduka A company that acquired the Beverly Hills Polo Club trade mark was found by the English Court of Appeal to be bound by an arbitration clause in an agreement entered into by its predecessor owner of the trade mark.[1] The appeal...

Husky Food Importers & Distributors Ltd v JH Whittaker & Sons Ltd [2022] ONSC 1679

By Elliott Couper and Jack Davies New Zealand confectionary and chocolate manufacturer, JH Whittaker & Sons Ltd (Whittaker’s), has brought a successful motion to stay litigation commenced against it by Husky Food Importers & Distributors Ltd (Husky) in the...

All dressed up but nowhere to go: Recognition but no enforcement of ICSID awards

By Dr Anna Kirk and Belinda Green   Foreign arbitral awards can be recognised and enforced in other countries by virtue of the provisions of the New York Convention. This is typically a quick and easy process. But two recent cases have been anything but. Why? Because...

Sign of the times: enforcing an arbitration agreement exchanged by electronic counterparts

By Belinda Green In the electronic era, documents often do not exist in physical form. Does this affect their enforceability? Recent decisions from Australia and New Zealand show that our mindset about what an original or duly certified copy is might need to change...

Different dispute resolution clauses in related contracts. Which one prevails?

By Jo O’Dea If you have a number of related contracts between different parties and they have different dispute resolution clauses, which one do you use? SUMMARY In ZPMC- Red Box Energy Services Ltd vs Philip Jeffry Adkins and Others [2021] HKCFI 3501, there were 3...

Court thwarts bad faith attempt to lift veil of confidentiality of international arbitration award

By Maria Cole The confidentiality of arbitral proceedings is important. It is protected by statute and model law. In EBJ21 v EBO21,[1] the Federal Court of Australia refused to have its processes used to erode or undermine the parties’ agreement to, and the law’s...

New Zealand still rated as global leader for public sector transparency, honesty and integrity

Transparency International has just released the 2021 Corruption Perception Index (CPI). New Zealand has retained its joint number one ranking along with Denmark, as having one of the least corrupt public sectors in the world. This year Finland joins the top-slot as...

Wilful Breaches of Contract – Do Exclusion Clauses and Liability Caps Still Work?

Can deliberate or wilful contract breaches still benefit from clauses that limit or exclude liability? The English High Court recently considered this issue in Mott Macdonald Ltd v Trant Engineering Ltd,[1] which confirmed that clauses limiting or excluding liability...

Clause and effect: the importance of well-drafted model clauses

An overview of why well-drafted model clauses matter Introduction Contracts, like disputes, come in all shapes and sizes. Most parties to a contract are keen to get the deal finalised and signed on the dotted line as quickly as possible. There isn't always an appetite...