An overview of our processes

Unfortunately, too many unsuccessful arbitration participants still see it as worth their while to ‘roll the dice’ by manufacturing a pathway to a court, where strained procedural unfairness arguments rise to the fore as something of a last refuge of the desperate. … This farcical position should no longer be entertained. Where [this] backdoor strategy is unsuccessfully deployed in future it should be met with a punitive costs sanction.^[1]

Arbitration is final and binding, and an award in New Zealand can be appealed only on a question of law (not fact) or when it is in conflict with public policy (involving fraud, corruption or a breach of natural justice, such as procedural unfairness). The principle underpinning this, is that parties will not be readily provided with a chance to re-argue their claims before a court after having chosen freely to resolve their disputes through arbitration.

This reflects the old saying, “you made your bed, so must lie in it”. In a recent decision out of the Supreme Court of Western Australia, the lawyers involved must have felt they had been sent to their beds without any supper. The case was Venetian Nominees Pty Ltd v Weatherford Australia Pty Ltd,^[2]where Kenneth Martin J dismissed an application to set aside an arbitral award based on an alleged denial of procedural fairness, in a scathing judgment.

The UK Supreme Court has overturned the judgment of the Court of Appeal in MUR Shipping, and held that a reasonable endeavours proviso in a force majeure clause does not require a party to accept an offer of non-contractual performance. In a unanimous decision, the Supreme Court focused on the importance of commercial certainty and that what is required by reasonable endeavours must be anchored to the contract.