New Zealand: Arbitration

The In-House Lawyer Logo

This country-specific Q&A provides an overview of the legal framework and key issues surrounding arbitration law in New Zealand including arbitration agreements, tribunals, proceedings as well as costs, awards and the hot topics concerning this country at present.

This Q&A is part of the global guide to Arbitration.

For a full list of jurisdictional Q&As visit http://www.inhouselawyer.co.uk/index.php/practice-areas/arbitration/

  1. What legislation applies to arbitration in your country? Are there any mandatory laws?

    The Arbitration Act 1996 (the Act) governs all forms of arbitration in New Zealand. Schedule 1 is mandatory, applying to all arbitrations seated in New Zealand, whether international or domestic, while Schedule 2 is optional.

    Schedule 1 follows the UNCITRAL Model Law closely, including the 2006 amendments. See, for example, articles 18 (equality of treatment), 24(2) (advanced notice of meetings and hearings) and 24(3) (right to be notified) of Schedule 1 and generally Methanex Motunui Ltd v Spellman [2004] 3 NZLR 454 (CA).

    Schedule 2 incorporates additional procedural rules, such as the right to appeal to the High Court on a question of law (clause (5)). That Schedule applies to domestic arbitrations unless the parties agree otherwise, but to international arbitrations only if the parties agree.

    An arbitration is international if: (a) the parties have their places of business in different states; (b) the place of the arbitration, the place where a substantial part of the obligations are to be performed, or the place with which the subject matter is most closely connected is outside the state where the parties have their places of business; or (c) the parties have expressly agreed that the subject matter of the arbitration agreement relates to more than one country (article 1(3) of Schedule 1).

  2. Is your country a signatory to the New York Convention? Are there any reservations to the general obligations of the Convention?

    Yes. New Zealand’s only reservation is reciprocity (“(a) This State will apply the Convention only to recognition and enforcement of awards made in the territory of another contracting State”).

  3. What other arbitration-related treaties and conventions is your country a party to?

    New Zealand is also a party to the 1965 Convention on the Settlement of Investment Disputes Between States and Nationals of Other States (the Washington Convention), the 1923 Protocol on Arbitration Clauses and the 1927 Convention on the Execution of Foreign Awards.

  4. Is the law governing international arbitration in your country based on the UNCITRAL Model Law? Are there significant differences between the two?

    Yes. Schedule 1 of the Act, which applies to all arbitrations (international or domestic) seated in New Zealand, follows the UNCITRAL Model Law closely, including the 2006 amendments. The purposes of the Act include promoting international consistency between arbitral regimes based on the Model Law and promoting consistency between international and domestic arbitration regimes (section 5). In interpreting the Act, New Zealand’s judiciary has also been alive to the aim of the Model Law to promote international harmonisation. See, for instance, the decision of the Supreme Court in Zurich v Cognition Insurance [2015] 1 NZLR 383 at [40].

  5. Are there any impending plans to reform the arbitration laws in your country?

    An Arbitration Amendment Bill is currently before Parliament. It has been partially considered and is expected to be passed into legislation in the final quarter of 2016. The Amendment Act proposes to:

    a. expand the definition of “arbitral tribunal” to include an emergency arbitrator;
    b. insert a new section 6A, under which the Minister of Justice must appoint a “suitably qualified body” in place of the High Court to resolve article 11 (3) to (6) appointment of arbitrator matters.

    The identity of the “appointed body” has not yet been specified, but the Arbitrators’ and Mediators’ Association of New Zealand (AMINZ) is the obvious choice.

    There are no other impending reform plans. Two options for reform which have been mooted by AMINZ, but are not yet in train, include:

    a. extending the presumption of confidentiality for New Zealand-seated arbitrations, which is found in sections 14 to 14I of the Act, to the conduct and publication of related court proceedings (New Zealand’s position on this currently differs from that in England, Singapore and Hong Kong); and
    b. confirming (contrary to the result in PT First Media TBK (formerly known as PT Broadband Multimedia TBK) v Astro Nusantara International BV and others and another appeal (2013) SGCA 57) that failure to challenge a jurisdictional ruling amounts to a waiver of any jurisdictional objections. AMINZ has suggested adding a new article 16(4) to Schedule 1 to declare that failure to submit a timely request under paragraph (3) operates as a waiver of future jurisdictional objection, including in a recognition and enforcement context.

    Another potential reform option might be to reexamine clause 5 of Schedule 2 to simplify the process for appeals on questions of law.

  6. What arbitral institutions (if any) exist in your country?

    Three institutions exist: AMINZ, the New Zealand Dispute Resolution Centre and the New Zealand International Arbitration Centre. All are willing to act as an appointing authority.

  7. What are the validity requirements for an arbitration agreement under the laws of your country?

    Arbitration agreement is defined in section 2 of the Act as meaning an agreement between the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not.

    There are three essential elements of an arbitration agreement. It must: (1) submit the matter to arbitration; (2) sufficiently identify the intended scope of jurisdiction; and (3) be related to a “dispute”. The Supreme Court has also held that an arbitration agreement must not provide for invalid recourse against an arbitral award (Carr & Anor v Gallway Cook Allan [2014] NZSC 75). An arbitration clause can be in a contract or separate agreement, and oral arbitration agreements are valid and enforceable (article 7 of Schedule 1). Courts will apply standard principles of contract interpretation when determining whether an agreement provides for arbitration as opposed to, say, expert determination (136 Fanshawe Ltd v Wilson Parking New Zealand Ltd [2016] NZHC 1854). Courts will apply a broad purposive approach to arbitrability (Bidois v Leef [2015] 3 NZLR 474 (CA)).

    There are, however, special enforceability requirements under s 11(1) of the Act for consumer arbitration agreements, which arise when a person enters a contract containing an arbitration agreement as a consumer. To be enforceable against the consumer, the consumer must agree to be bound by the agreement under a separate written agreement, which must disclose which, if any, of the provisions of Schedule 2 do not apply to the arbitration agreement as this would, for example, potentially limit the consumer’s right to appeal to the High Court on a question of law.

  8. Are arbitration clauses considered separable from the main contract?

    Yes. Article 7 of Schedule 1 reflects the equivalent provision of the Model Law.

  9. Can claims under more than one contract be brought in the one arbitral proceeding? Can an arbitral tribunal with its seat in your country consolidate separate arbitral proceedings under one or more contracts, and, if so, in what circumstances?

    Yes, provided – in the case of an international arbitration – that the parties have agreed that clause 2 of Schedule 2 to the Act applies. Where proceedings all have the same arbitral tribunal, the tribunal may, on the application of at least one party in each proceeding, order those proceedings to be consolidated (clause 2(1) of Schedule 2). Where proceedings are in different tribunals, any of the tribunals may make a provisional order to consolidate proceedings (clause 2(2) of schedule 2). The order becomes effective once provisional orders have been made on behalf of all the parties. The High Court can also make a consolidation order upon application by a party in any of the proceedings.

  10. How is the law applicable to the substance determined?

    New Zealand’s provisions on the choice of substantive law derive from the UNCITRAL Model Law (article 28 of Schedule 1 of the Act). Thus, parties are entitled to choose the substantive law. Where the parties do not choose the substantive law, the arbitral tribunal applies the law determined by conflict of laws rules which it considers applicable. (For the leading New Zealand decision on amiable composition, see A’s Co Ltd v Dagger HC Auckland M1482-SD00, 7 March 2003.)

  11. Are any types of dispute considered non-arbitrable? What is the approach used in determining whether or not a dispute is arbitrable?

    Yes, in theory. Arbitration agreements contrary to public policy are not determinable by arbitration (section 10 of the Act). To date, no such disputes have been identified. The High Court confirmed over 25 years ago that competition law disputes are arbitrable in New Zealand (Attorney-General v Mobil Oil NZ Ltd [1989] 2 NZLR 649 (HC)).

  12. In your country, are there any restrictions in the appointment of arbitrators?

    No, other than the usual rules on independence and impartiality derived from the UNCITRAL Model Law (article 12 of Schedule 1 of the Act). Non-nationals can also act as arbitrators for a New Zealand-seated arbitration (article 11(1) of Schedule 1). It may be necessary for an arbitrator to apply for a work visa to attend hearings in New Zealand, depending on the nationality of the arbitrator and New Zealand’s visa arrangements with that country.

  13. Are there any default requirements as to the selection of a tribunal?

    New Zealand has adopted the default procedure from the UNCITRAL Model Law (see article 11 of Schedule 1 of the Act), by which an application can be made to the High Court if a party fails to appoint provided the agreement on appointment procedure does not provide other means for securing the appointment. However, legislation is presently under consideration which would allow the Minister of Justice to designate a suitably qualified body (most likely, AMINZ) in place of the High Court as the default appointing authority for all arbitrations seated in New Zealand.

    In arbitrations to which Schedule 2 applies, a “quick-fire” procedure is provided instead by which one party can identify the default appointment and require the appointment of a nominated arbitrator within seven days (clause 1). If such appointment is not made by agreement within that time, it is made by operation of law. It has been confirmed that this procedure, where it applies, entirely replaces article 11 of Schedule 1, thus ousting court jurisdiction (Hitex Plastering Ltd v Santa Barbara Homes Ltd [2002] 3 NZLR 695 (HC)).

  14. Can the local courts intervene in the selection of arbitrators? If so, how?

    As stated above, if a party fails to appoint an arbitrator or engage in the appointment procedure, the other party can apply to the High Court requesting that the Court make the appointment or take the step that the defaulting party has failed to take (see article 11, Schedule 1 or clause 1, Schedule 2 if it applies).

  15. Can the appointment of an arbitrator be challenged? Can an arbitrator be disqualified? What is the procedure for such challenge?

    The grounds on and procedure by which a party may challenge an arbitrator are specified in articles 12 and 13 of Schedule 1 of the Act. These provisions have been applied by New Zealand courts. There is no New Zealand institution that has widely considered arbitrator challenges and, as yet, no New Zealand court has applied the IBA Guidelines on Conflicts of Interest in International Arbitration in considering a challenge.

    If a party does not challenge an appointment at the point when the arbitrator discloses his or her interest at the beginning of the hearing, that party cannot then seek to use bias as a ground to set aside an unsatisfactory award at a later date (Pirirakau v Ngata Taka [2015] NZCA 176).

  16. Are arbitrators immune from liability?

    Section 13 of the Act provides that arbitrators are not liable for negligence in respect of anything done or omitted to be done in the capacity of arbitrator.

  17. Is the principle of competence-competence recognised in your country? What is the approach of local courts towards a party commencing arbitration in apparent breach of an arbitration agreement?

    Yes. See article 16 of Schedule 1 of the Act, which reflects the equivalent provision in the UNCITRAL Model Law.

    New Zealand courts support arbitration agreements in accordance with the purposes of the Act which include encouraging the use of arbitration as an agreed method of resolving commercial and other disputes (section 5(a)). A mandatory stay is available under article 8 of Schedule 1 if the party seeking to uphold the arbitration agreement applies to the Court before proceedings have been commenced. The Court is required to stay the proceedings unless it finds that the arbitration agreement is null, void, inoperative or incapable of being performed, or that there is not in fact any dispute between the parties with regard to the matters agreed to be referred. The Supreme Court has confirmed that Parliament did not intend to import a summary judgment standard (a contention that there is no reasonably arguable defence does not mean there is not a dispute between the parties) as a threshold for a mandatory article 8(1) stay (Zurich v Cognition Insurance [2015] 1 NZLR 383). For a recent example of a mandatory article 8(1) stay, see Flock Hill v University of Canterbury [2015] NZHC 3169.

    The application for stay need not delay the arbitration proceedings. The arbitral proceedings may be commenced and an award made while the issue is pending before the Court (article 8(2) of Schedule 1). Article 8 applies even where the place of arbitration is outside New Zealand (section 7). Note that in Danone Asia Pacific Holdings PTE Limited & Ors v Fonterra Co-operative Group Limited [2014] NZCA 536, a discretionary case management stay was granted in favour of an international arbitration seated in Singapore. The respondent was the parent company to the contractual counterparty, and not the counterparty itself. Accordingly, the article 8 mandatory stay was unavailable. The existence of the arbitration was, however, a highly relevant consideration to the exercise of the High Court’s discretion, as confirmed on appeal.

    The Act does not specifically provide for anti-suit injunctions to be issued by a court in support of an arbitration agreement, but, notwithstanding the terms of article 5 of Schedule 1 (“In matters governed by this Schedule, no court shall intervene except where so provided by this Schedule”), New Zealand courts would be likely to follow English jurisprudence in this respect and find that they do have authority to issue anti-suit injunctions to support arbitration agreements. It is notable that the court’s jurisdiction to issue an anti-arbitration injunction has already been confirmed by the High Court (Carter Holt Harvey Ltd v Genesis Power Ltd [2006] 3 NZLR 794).

  18. How are arbitral proceedings commenced in your country? Are there any key provisions under the arbitration laws relating to limitation periods of which the parties should be aware?

    New Zealand’s provisions on the commencement of arbitral proceedings are derived from the UNCITRAL Model Law (article 21 of Schedule 1 of the Act). Unless parties agree otherwise, proceedings commence when a request for that dispute to be referred to arbitration is received by the respondent. The limitation periods are governed by the substantive law. Where the substantive law is New Zealand, New Zealand limitation rules will apply, and under New Zealand law claims made in New Zealand-seated arbitrations have the same limitation periods as claims made in civil proceedings (section 39 of the Limitation Act 2010). Where the substantive law is foreign, they are subject to that foreign law’s limitation law (section 55). The High Court may override section 55 in the interests of public policy (or hardship), unless the foreign law is Australian (section 56). New Zealand law also specifies a limitation period for the enforcement of an arbitral award, being six years from the date on which the award became enforceable in New Zealand (section 36).

  19. What is the applicable law (and prevailing practice) where a respondent fails to participate in the arbitration? Can the local courts compel parties to arbitrate? Can they order third parties to participate in arbitration proceedings?

    If a respondent fails to communicate a statement of defence, the tribunal shall continue the proceedings without treating the respondent’s non-participation as an admission of the claimant’s allegations (article 25(b) of Schedule 1 of the Act). If any party fails to appear at the hearing or produce documentary evidence, the arbitral tribunal may continue the proceedings and make the award on the evidence before it (article 25(c) of Schedule 1).

    Local courts would not, and arguably cannot, compel parties to substantively participate in an arbitration, although (as noted above), they can stay court proceedings commenced in breach of an arbitration agreement. A fortiori, local courts cannot require third parties to participate as parties in an arbitration (see below).

  20. In what instances can third parties or non-signatories be bound by an arbitration agreement or award (e.g. by joinder)?

    Third parties cannot readily be bound by an arbitration clause. In the leading New Zealand case on this issue, the Court of Appeal held that an arbitration clause between A and B did not extend to C so as to give C standing to appeal the arbitral award, notwithstanding that C had – with agreement – participated in the arbitration on a limited basis (Methanex Motunui Ltd v Spellman [2004] 3 NZLR 454). Joinder is, however, possible with party agreement (although the Act is silent on this point). There is no recognised third-party notice procedure for arbitration in New Zealand.

    Under the AMINZ Arbitration Protocol, third parties, such as subcontractors or insurers, may be invited to join the arbitration by agreement between all parties.

  21. What interim measures are available? Will local courts issue interim measures pending the constitution of the tribunal?

    New Zealand has followed the UNCITRAL Model Law, both in providing for court-ordered interim measures in support of an arbitration (article 9 of Schedule 1 of the Act) and for a tribunal-ordered interim measures regime (articles 17 to 17M of Schedule 1). Courts can grant an interim measure on the application of a party pending or even after constitution of the tribunal (article 9(1) of Schedule 1), but have only the same power to order interim measures as do tribunals (article 9(2) of Schedule 1). See Safe Kids in Daily Supervision Limited v McNeill [2012] 1 NZLR 714, Solid Energy New Zealand Ltd v HWE Mining Pty Ltd HC Hamilton CIV 2010-419-000904, 5 August 2010 and Discovery Geo Corporation v STP Energy Pte Limited [2013] 2 NZLR 122.

  22. Are there particular rules governing evidentiary matters in arbitration? Will the local courts in your jurisdiction play any role in the obtaining of evidence?

    Strictly speaking, the New Zealand Evidence Act 2006 does not apply to arbitrations in New Zealand. However, it is not uncommon for its provisions to be applied by analogy. The IBA Rules on the Taking of Evidence in International Commercial Arbitration will not generally be taken into account unless the parties so agree.

    Generally, the New Zealand arbitration climate remains, in practice, conscious of domestic law and practice when determining procedural or evidentiary matters. It may therefore be particularly sensible to incorporate a set of procedural rules or to record that the arbitration is to be conducted by reference to the IBA Rules on the Taking of Evidence in International Commercial Arbitration, or both.

    New Zealand courts will play a role in taking evidence if the tribunal requests assistance (article 27 of Schedule 1 of the Act). The High Court recently ordered a non-party to produce documents for the purposes of an arbitration on the basis that the documents were relevant and their confidentiality would be adequately protected (Infratil Infrastructure Property Limited v Viaduct Harbour Holdings Limited & Ors [2015] NZHC 2533). Similarly, in another case, a non-party discovery ordered approved by the arbitrators was granted because it was necessary and relevant to have evidence of the market price of gas for the determination of the dispute (Vector Gas Contracts Limited & Ors v Contact Energy Limited & Ors [2014] NZHC 3171).

    Separately, New Zealand courts have the power to order the taking of evidence in New Zealand in support of a foreign-seated arbitration (Dalian Deepwater Developer Ltd v Dybdahl [2015] 3 NZLR 260, relying on sections 184 and 185 of the Evidence Act 2006).

    Clause 3 of Schedule 2 specifies additional powers a court may exercise with regard to the obtaining of evidence, which a court may exercise with the permission or invitation of the arbitral tribunal.

  23. What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your country?

    No arbitration-specific standards apply. New Zealand practitioners consider themselves bound by the relevant New Zealand professional standards when conducting arbitral proceedings. Under the AMINZ Arbitration Protocol, proposed arbitrators are required to have no interest in the matters in dispute and are required to disclose, prior to accepting the appointment, any dealings or acquaintance with any of the parties to the dispute and any knowledge of the dispute. It remains to be seen what impact the IBA Guidelines on Party Representation in International Arbitration will or may have.

  24. How are the costs of arbitration proceedings estimated and allocated?

    Where Schedule 2 of the Act applies to the arbitration, costs are to be fixed in the award (clause 6), and arbitrators are required to so fix costs, even if no party claims costs (Casata Ltd v General Distributors Ltd [2006] 2 NZLR 721 (SC)). By analogy with domestic court practice, costs will usually follow the event. However, there is no certainty that a winning party will recover all fees paid and costs incurred (as opposed to a reasonable proportion thereof). Moreover, where Schedule 2 applies, a party may apply to the High Court to seek an order varying the amount of allocation of costs if the amount or allocation are unreasonable in the circumstances.

  25. Can interest be included on the principal claim and costs incurred?

    Yes. It is customary for pre-award interest to be added to the principal claim. Unless the parties agree otherwise, a sum directed to be paid by an award shall carry post-award interest from the date of the award and at the same rate as a judgment debt (article 31(5) of Schedule 1 of the Act).

  26. Can arbitration proceedings and awards be appealed or challenged in local courts? What are the grounds and procedure?

    Yes, parties may seek to set aside awards on Model Law grounds under article 34 of Schedule 1 of the Act. As to this, see Amaltal Corporation Limited v Maruha (NZ) Corporation Limited [2004] 2 NZLR 614 (CA). The Court may set aside awards on the basis of public policy (Amaltal), fraud (Ironsands Investments Limited v Toward Industries Limited [2012] NZHC 1277) and natural justice (Kyburn Investments Limited v Beca Corporate Holdings Limited [2015] 3 NZLR 644). In Kyburn, although a breach of natural justice was found, the award was not set aside as the breach did not have an impact on the award itself, illustrating that the court’s power to set aside awards is discretionary.

    An appeal on a question of law is also possible if, and only if: (a) clause 5 of Schedule 2 applies; and (b) with the specific agreement of the parties or leave of the High Court. The requirements for obtaining leave in the absence of party agreement are authoritatively set out in the Court of Appeal’s decision in Gold & Resource Developments (New Zealand) Ltd v Doug Hood Ltd [2000] 3 NZLR 318 (CA).

  27. Can the parties waive any rights of appeal or challenge to an award by agreement before the dispute arises (such as in the arbitration clause)?

    It is not possible to contract out of set-aside mechanism in article 34 of Schedule 1 of the Act (Methanex Motunui Ltd v Spellman [2004] 3 NZLR 454 (CA)).

    It is, however, entirely possible to contract out of the clause 5 of Schedule 2 appeal on a question of law. To start with, none of the provisions of Schedule 2 apply to an international arbitration held in New Zealand unless the parties specifically agree that the whole of Schedule 2, or specified provisions, will apply. Moreover, even where Schedule 2 applies to an arbitration, an appeal on a question of law is available only by specific party agreement or with leave of the court.

  28. To what extent might a state or state entity successfully raise a defence of state or sovereign immunity at the enforcement stage?

    New Zealand recognises the doctrine of restrictive sovereign immunity at common law, which generally reflects the approach taken in foreign codifications such as the UK Sovereign Immunity Act 1978. Thus, a defence of sovereign immunity can be raised at an enforcement stage and, in accordance with conventional principles, immunity to execution will not be deemed waived by a previous submission to arbitration.

  29. Are there rules or restrictions on third-party funders in your country?

    Litigation funding is now permitted in New Zealand. See, for example, Waterhouse v Contractors Bonding Ltd [2013] NZSC 89. There is currently no regulation of third party funding by legislation. The non-funded party bears the burden of raising any concerns before a court will scrutinise a funding agreement. This might be, for example, where the non-funded party applies for security for costs, or where a third party costs order against the funder or a stay on the grounds that the funding amounts to an abuse of process.

    In the Waterhouse case, the Supreme Court provided guidance for the Courts on third party funding, which may guide arbitrators in New Zealand dealing with disputes governed by New Zealand law:

    • There should be disclosure, as soon as proceedings are issued, of the identity and location of any litigation funder and whether the funder is subject to the jurisdiction of the New Zealand courts. The funder does not need to provide the other party to the litigation with an indemnity for its costs.
    • Funding agreements themselves may be relevant to an application for security for costs or third party costs, or where a stay is sought on grounds of abuse of process.
    • If the other party brings a stay application, the funded party may be compelled to disclose the funding agreement.
    • In order to defeat an abuse of process argument, it will remain important to draft litigation funding agreements carefully to avoid effecting a bare assignment. The distinction is between a true funding agreement for an engaged plaintiff and a wholesale transfer of rights with the plaintiff remaining only a figurehead.
  30. Is there a concept in your country providing for class-action or group arbitration? If so, are there any limitations to the arbitrability of such claims or requirements that must be met before such claims may be arbitrated?

    There are no specific procedural rules or statutes facilitating class actions in New Zealand. New Zealand claimants must rely on existing procedural rules of court to bring class actions which are known as “representative actions”. A claim can proceed by way of representative action if those being represented have “the same interest in the subject matter of a proceeding” as the representative party (High Court Rules, rule 4.24). Principles relating to class actions have developed through the bringing of three high-profile legal actions which have proceeded as class actions in all but strict legal name: Houghton v Saunders [2014] NZHC 1828, Cooper v ANZ Bank New Zealand Ltd [2013] NZHC 2827 and Strathboss Kiwifruit Ltd v Attorney-General [2015] NZHC 1596.

    Without specific procedural rules or statutes, class actions in New Zealand can be arbitrated only with the positive consent of all parties, so an opt-out class is not possible. We are not aware of any class action or group arbitrations that have occurred in New Zealand to date.

  31. Is diversity in the choice of arbitrators (e.g. gender, age, origin) actively promoted in your country? If so, how?

    Diversity in the choice of arbitrators is increasingly recognized as a pressing and important issue, and is a frequent topic of discussion at seminars and conferences. To the author’s knowledge, no formal mechanisms have been established to monitor or require diversity of appointments.

  32. Is emergency arbitrator relief available in your country? Is this actively used?

    It is available, but not widely used. This is largely because: (a) New Zealand-seated arbitrations are typically ad hoc, so are not conducted pursuant to rules providing for the appointment of emergency arbitrators; and (b) New Zealand courts have provided fast, effective, interim relief, if necessary on an ex parte basis (see, for example, Discovery Geo Corporation v STP Energy Pte Limited [2013] 2 NZLR 122). The Arbitration Amendment Bill will expressly widen the definition of “arbitral tribunal” to include an emergency arbitrator.

  33. Have measures been taken by arbitral institutions in your country to promote transparency in arbitration?

    There have been few dedicated measures to promote transparency, primarily as a result of the lack of investor-state arbitrations, where the tension between confidentiality and tension is usually most apparent. New Zealand has not yet been party to any investment treaty arbitrations. New Zealand has been party to one ICSID arbitration, Attorney-General v Mobil Oil NZ Ltd [1989] 2 NZLR 649 (HC), but in this case the Tribunal’s jurisdiction was founded in contract.

  34. Are efforts being made by arbitration institutions or local courts to impose strict deadlines for the rendering of awards?

    Under the AMINZ arbitration protocol the tribunal is required to publish the award within three months of the conclusion of the hearing or within such extended time as the tribunal may reasonably require. The protocol also provides for the tribunal to issue an interim or partial award where appropriate.

  35. Have steps been taken in your country to publish reasoned decisions on arbitrator challenges and provide more insight into the drivers behind arbitrator selection by institutions?

    No significant steps have been taken in New Zealand to published reasoned decisions on arbitrator challenges, mostly because institutional arbitral rules have not been widely used. The default challenge mechanism (if an agreed challenge procedure is not successful) is to the High Court, where decisions are made publicly available. Moreover, AMINZ is shortly to promulgate a set of arbitration rules for the first time. Accordingly, it may be that more reasoned decisions on arbitrator challenges are produced in the future.

  36. Are there arbitral laws or arbitration institutional rules in your country providing for simplified procedures for claims under a certain value?

    There are no legislative provisions relating to expedited arbitration. The New Zealand Dispute Resolution Centre has promulgated specific expedited arbitration rules, primarily for use in construction disputes. These include 45 day, 60 day and 90 day procedures, the first of which is on the documents. As noted above, AMINZ has been working on an inaugural set of arbitration rules, which, once released, are expected to be influential within New Zealand.