New Zealand - National Report - World Arbitration Reporter (WAR) - 2nd Edition

Daniel Kalderimis is a principal in the dispute resolution team of Chapman Tripp and leads the firm’s international arbitration and trade law practice, which focuses on the Asia Pacific region. He is admitted in New Zealand, New York and England & Wales (where he is a solicitor-advocate for civil matters). Mr. Kalderimis studied at Victoria University of Wellington and at Columbia Law School, where he was a Fulbright scholar and an associate-inlaw. Before returning to Chapman Tripp, he worked in London as a senior associate in the international arbitration group of Freshfields Bruckhaus Deringer LLP. Mr. Kalderimis is a specialised advocate and has acted as counsel in several significant international arbitrations. He also appears as a barrister and solicitor in commercial litigation before New Zealand courts. He is widely published in the field of international economic law, and is named in the Who’s Who International of Commercial Arbitration for 2010.

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Originally from World Arbitration Reporter (WAR) - 2nd Edition

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I. INTRODUCTION: ARBITRATION IN NEW ZEALAND –

HISTORY AND INFRASTRUCTURE

A. History and Current Legislation on Arbitration

New Zealand’s arbitration law is found in the Arbitration Act 1996

(the Act), which was enacted to implement the UNCITRAL Model Law

(the Model Law), and thus replaced its 1908 predecessor.

New Zealand is a party to the New York Convention,1 the

Washington Convention,2 and the two earlier Geneva Conventions on

arbitration.3

1. Historical evolution of law relating to arbitration

The Act was the result of 1989 and 1991 reports by the New

Zealand Law Commission recommending a radical revision of New

Zealand’s arbitration legislation. In 2003, the Law Commission

reviewed the operation of the Act and found it to be working

effectively. Some further amendments were made in 2007 as a result

of the Law Commission’s report.

2. Current law

In scheme, the Act consists of certain primary provisions, a First

Schedule and a Second Schedule.

The Act’s primary provisions address systemic and conceptual

issues, including clarifying the purposes of the Act, which are:4

(a) To encourage the use of arbitration as an agreed method

of resolving commercial and other disputes; and

(b) To promote international consistency of arbitral regimes

based on the Model Law on International Commercial

Arbitration adopted by the United Nations Commission on

International Trade Law on 21 June 1985; and

domestic arbitral regimes in New Zealand; and

(d) To redefine and clarify the limits of judicial review of the

arbitral process and of arbitral awards; and

(e) To facilitate the recognition and enforcement of

arbitration agreements and arbitral awards; and

(f) To give effect to the obligations of the Government of New

Zealand under the Protocol on Arbitration Clauses (1923),

the Convention on the Execution of Foreign Arbitral

Awards (1927), and the Convention on the Recognition

and Enforcement of Foreign Arbitral Awards (1958) (the

English texts of which are set out in Schedule 3).

The First Schedule, which is mandatory save where it expressly

provides for parties to opt out, effectively enacts the Model Law, with

certain minor modifications. The First Schedule was amended in 2007
to reflect, inter alia, the interim measures and preliminary orders

Table of Contents:

I. INTRODUCTION: ARBITRATION IN NEW ZEALAND – HISTORY AND INFRASTRUCTURE

A. History and Current Legislation on Arbitration

1. Historical evolution of law relating to arbitration

2. Current law

3. Confidentiality and publication of awards

B. Arbitration Infrastructure and Practice in New Zealand

II. CURRENT LAW AND PRACTICE

A. Arbitration Agreement

1. Types and validity of agreement

a) Minimum essential content

b) Form requirements

c) Incorporation by reference

d) Interpretation

i. Applicability of New Zealand law

ii. New Zealand approach to interpretation

2. Enforcing arbitration agreements

a) Applications to compel or stay arbitration

i. “Not in fact any dispute” element: retention of summary judgment jurisdiction

ii. Time limit

iii. First statement

iv. Interim relief not inconsistent with arbitration

v. Residual discretion to grant stay

b) Legal remedies and proceedings to enforce the agreement

3. Effects on third parties

4. Termination and breach

B. Doctrine of Separability

C. Jurisdiction

D. Arbitrability

1. Subjective arbitrability

a) Natural persons

b) Legal persons

c) State and state entities

2. Objective arbitrability

a) Policy in favour of arbitration

b) Matters contrary to public policy

c) Specific regimes which take priority

d) Matters that are not “disputes”

E. Arbitral Tribunal

1. Status and qualifications of arbitrators

a) Number of arbitrators

b) Legal status

c) Qualifications and accreditation requirements

2. Appointment of arbitrators

a) Methods of appointment

b) Procedure in absence of parties’ agreement

c) Resignation and its consequences

3. Challenge and removal

4. Arbitrator liability and immunity

F. Conducting the Arbitration

1. Law governing procedure

a) Notion and role of seat of arbitration

b) Methods for selection of seat absent party choice

2. Conduct of arbitration

a) Basic procedural principles

b) Party autonomy and arbitrators’ power to determine procedure

c) Tribunal’s power to issue procedural orders

d) Oral hearing or proceeding on basis of written documents

e) Submissions, legal deadlines and effect of noncompliance

f) Statutory requirements for notification during an arbitration

g) Legal representation

h) Effect of a party’s insolvency

3. Taking of evidence

a) Burden of proof

b) Documentary evidence and privilege

c) Production of documents

4. Interim measures of protection

a) Available interim measures

b) Jurisdiction for granting interim measures

c) Availability of preliminary or ex parte orders

d) Limits of the tribunal’s power to order interim measures

5. Interaction between national courts and arbitration tribunals

a) Extent of court assistance in the gathering of evidence

6. Law and rules of law applicable to the merits

7. Costs

a) General allocation of the costs of the proceedings

b) Deposits or advances for costs or fees

G. Arbitration Award

1. Types of awards

2. Form requirements

a) Essential content

b) Reasons

c) Time limits for making the award

3. Decision making

a) Majority or Consensus?

b) Dissenting opinions

4. Settlement

a) Settlement by agreement of the parties

b) Form and effect of a settlement

5. Correction, supplementation, and amendment

H. Challenge and Other Actions against the Award

1. Setting aside of the award

a) Grounds

b) Time limits and Procedure

c) Effects of successful challenge

d) Appeal from the court’s decision

e) Parties’ ability to exclude, limit or expand actions for setting aside

2. Appeal on the merits

a) Process for an application for preliminary determination of point of law

b) Process for an appeal on question of law

c) AMINZ Arbitration Appeals Tribunal

III. RECOGNITION AND ENFORCEMENT OF AWARDS

A. No Distinction between Domestic and Foreign Awards

B. Grounds for Refusing Recognition or Enforcement

C. Enforcement Procedure

1. Enforcement procedure in the High Court

2. Appeal against the decision entering or not entering award as judgment

3. Enforcement procedures of the judgment

D. Previous Legislation and Other Conventions

IV. APPENDICES AND RELEVANT INSTRUMENTS

A. International Conventions

B. National Legislation (See CD ROM)

C. Major Arbitration Institutions

D. Cases

E. Bibliography

1. Texts, monographs and reports

2. Articles