New Zealand - Part R - Arbitration in Asia - 2nd Edition
Anna Kirk is a commercial arbitrator, adjudicator and barrister, specialising in international arbitration and public international law. Dr. Kirk is New Zealand’s member on the ICC International Court of Arbitration (2021–24) and sits on the Council of the Arbitrators’ and Mediators’ Institute of New Zealand. She is a Fellow of the Chartered Institute of Arbitrators. Dr. Kirk has been working in arbitration for over 15 years as counsel, arbitrator and tribunal secretary. She has significant experience in arbitrations under the ICC, UNCITRAL, ICSID, LCIA and SIAC Rules. Dr. Kirk practised in London before returning to New Zealand in 2011 to work with Sir David Williams KC.
Lauren Lindsay is a barrister and arbitrator based in the Asia-Pacific region. She acts as counsel in all forms of dispute resolution, including commercial litigation and arbitration, investment treaty disputes and in mediations. Ms. Lindsay also accepts appointments as arbitrator. She is dual-qualified in law and science, with particular expertise in disputes arising in the life sciences, insurance, ICT and renewables sectors. Ms. Lindsay is admitted to practice in New Zealand and England & Wales. She is ranked as a commercial litigator in Chambers & Partners, Legal 500 and Who’s Who Legal. She is a Fellow of CIArb, ACICA and AMINZ. Ms. Lindsay is a bilingual French and English speaker. Prior to returning to the independent bar in 2019, she spent over seven years with a global law firm’s international arbitration group in London.
Originally from Arbitration in Asia - 2nd Edition
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[1] INTRODUCTION
Arbitration is widely used and understood in Aotearoa New Zealand, which was an early adopter of the UNCITRAL Model Law on International Commercial Arbitration (“the Model Law”). Arbitration is frequently selected as the preferred mechanism for the resolution of contractual disputes in place of High Court litigation. Since the COVID pandemic, there has been an increasing strain on the New Zealand court system, with long wait times for a High Court fixture. Anecdotally, this appears to have resulted in a greater use of arbitration.
The practice of arbitration in New Zealand is primarily domestic, and dominated by construction and infrastructure, lease and rent review disputes, as well as general contractual disputes. Increasingly, arbitration is becoming the preferred method of settling disputes in the technology sector. There are also a number of statutory arbitration schemes worthy of note, including compulsory arbitration under the Companies Act for determining share price in a minority buy-out context. In addition to these domestic arbitrations, there is an increasing volume of international arbitrations involving New Zealand parties or seated in New Zealand.
A body of arbitration related case law has now emerged, and is continuing to grow, providing further guidance and coherence in the application of New Zealand’s arbitration legislation in practice. New Zealand is cementing its reputation as an arbitration-friendly jurisdiction.
The Arbitration Act 1996 (“the Act”) governs all forms of arbitration in New Zealand, whether domestic or international, commercial or non-commercial. The aim of the Act was to adopt the Model Law to ensure consistency with the international arbitration landscape. Consequently, the Act is closely based on the Model Law, which is incorporated (including the 2006 amendments) into Schedule 1 with only minor modifications. New Zealand’s judiciary has been alive to the fact that the Act is based on the Model Law which aims at international harmonisation and has generally sought to interpret the Act in an internatinal context.
New Zealand is alos a party to the New York Convention, the Washington Convention, and the two earlier Geneva Convention on arbitraton. In the international trade and investment treaty context, New Zealand i a party to the WTO, to the ICSID Convention and to several multilateral trade agreements.
[1] INTRODUCTION
[2] LEGISLATION
[3] ARBITRATION AGREEMENTS
[3.1] Arbitrability of disputes
[3.2] Severability of the arbitral clause
[3.3] Jurisdiction of the arbitral tribunal
[3.4] Enforcement of the arbitration agreement
[3.4.1]“Not in fact any dispute” element: retention of summary judgment jurisdiction
[3.4.2] Procedures for a stay application
[3.4.3] Residual discretion to grant stay
[3.5] The arbitration of trust disputes
[4] ARBITRATORS AND THE ARBITRAL TRIBUNAL
[4.1] Arbitrators’ qualifications and accreditation requirements
[4.2] Appointment of arbitrators
[4.3] Challenge the arbitrator’s appointment
[4.4] Arbitrator liability and immunity
[5] ARBITRATION PROCEDURE
[5.1] Powers of the arbitral tribunal
[5.2] Place of arbitration
[5.3] Procedure
[5.3.1] Evidence
[5.3.1.1] Arbitral tribunal’s powers
[5.3.1.2] Court assistance with obtaining evidence
[5.3.2] Legal representation in proceedings
[5.3.3] Experts
[5.3.4] Witnesses
[5.3.5] Confidentiality
[5.3.6] Consolidation of arbitral proceedings
[5.3.7] Law and rules of law applicable to the substance of the dispute
[6] AWARDS
[6.1] Types of awards
[6.2] Form and content of award
[6.3] Making of the award
[6.4] Decision by a majority of arbitral members
[6.5] Settlement
[6.6] Correction, supplement, and amendment of the award
[6.7] Costs
[6.8] Remedial powers and interests
[7] JUDICIAL ASSISTANCE AND INTERVENTION
[7.1] Interim measures of protection
[7.2] Preliminary orders
[7.3] Courts’ assistance
[8] SETTING ASIDE AN AWARD
[8.1] Grounds for setting aside an award
[8.1.1] Application procedure
[8.1.2] Result of a successful challenge
[8.1.3] Parties' ability to vary actions for setting aside
[9] APPEALS ON QUESTIONS OF LAW
[9.1] The test for granting leave
[9.2] Applications for leave to appeal have a low chance of success
[10] RECOGNITION AND ENFORCEMENT OF FOREIGN AWARDS
[10.1] Recognition and enforcement
[10.2] Defences to the enforcement of an award
[10.3] Enforcement procedure
[10.3.1] Enforcement procedure in the High Court
[10.3.2] Appeal against the decision entering, or not entering, award as judgment
[10.3.3] Enforcement procedure of the judgment
[11] PRACTICAL INFORMATION
[11.1] Arbitral institutions
[12] APPENDICES
[12.1] Arbitration Act 1996 (includes Geneva and New York Conventions)