NEW ZEALAND Law and Practice Contributed by: Shane Campbell and Thomas Westaway, Campbell Westaway
Arbitration also offers a faster resolution pathway than High Court litigation, as the comparative figures in 3.1 Prevalence demonstrate. The ability to tailor proce- dure to the dispute amplifies that advantage further. Party autonomy is broad. The seat, language, pro- cedural rules, and composition of the tribunal are all matters the parties may agree on. The flexibility of the Model Law accommodates tikanga Māori as the governing law, enabling parties in disputes involving Māori entities or interests to appoint tribunals with expertise in tikanga and adopt procedures consistent with te ao Māori. Parties may also select arbitrators with specific tech- nical or legal expertise, a significant advantage in construction, engineering, valuation, and specialist commercial disputes. Unless parties have opted into appeal rights under Schedule 2 of the Act, awards are final and binding with very limited grounds for chal- lenge. New Zealand’s status as a New York Conven- tion contracting state gives awards the capacity to be Cost is the most immediate constraint. Parties bear the arbitrator’s fees and, where applicable, institu- tional administration costs, in addition to their own legal costs. In lower-value domestic disputes, those additional costs can erode the efficiency savings that arbitration might otherwise deliver. The Act contains no specific disclosure provisions, leaving the scope of document production to party agreement or tribunal determination. Where the docu- mentary record is extensive and potentially determi- native, that flexibility can become a meaningful con- straint. enforced in over 170 contracting states. 3.4 Disadvantages of Arbitration Appeal rights are narrow by design. Unless parties have agreed to apply Schedule 2 of the Act, the grounds on which an award may be challenged are limited. Where a tribunal has made a material error of law, the restricted avenues for correction can leave a party without adequate redress. Multi-party and multi-contract disputes present struc- tural difficulties. Consolidation of related proceedings requires the consent of all parties involved, which can
produce fragmented proceedings and inconsistent outcomes in complex commercial disputes. Finally, the confidentiality afforded to individual par- ties comes at a collective cost. Arbitral awards do not create binding precedent, and in a small jurisdiction where the body of commercial case law is relatively slim, widespread use of arbitration contributes little to the development of commercial jurisprudence. 3.5 Arbitral Institutions New Zealand’s arbitration landscape is served by the following three principal institutions: • The Arbitrators’ and Mediators’ Institute of New Zealand (AMINZ) is the principal professional body for arbitrators and mediators, maintaining panels of accredited practitioners and acting as the default appointing authority where parties cannot agree. • The New Zealand Dispute Resolution Centre (NZDRC) administers arbitration, mediation, and adjudication proceedings under its own procedural rules, and has seen increased uptake for domestic arbitrations. • The New Zealand International Arbitration Centre (NZIAC) focuses on international and cross-border arbitrations, with rules and case management ser- The length of arbitral proceedings varies with the com- plexity of the dispute, the volume of documents, and the availability of the tribunal and representatives. For smaller disputes, NZIAC’s Expedited Arbitration Rules provide an accelerated procedure. The Survey recorded an average duration of 10.65 months from arbitral appointment to substantive award, with a median of seven months, against an average of 566 days between a High Court case being ready for hearing and the defended hearing date. 75% of awards were issued within 12 months of appoint- ment. Where a substantive oral hearing was held, the average hearing length was 3.3 days. Procedural and case management steps are increasingly conducted by audio-visual link, a practice now settled in New Zealand arbitral procedure even as substantive hear- ings have largely reverted to in-person. vices tailored to that context. 3.6 Length of Proceedings
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