NEW ZEALAND Law and Practice Contributed by: Shane Campbell and Thomas Westaway, Campbell Westaway
3.7 Regulation of Arbitration The Act establishes a two-tier framework distinguish- ing mandatory rules applicable to all arbitrations from the optional Schedule 2 provisions. International arbi- trations and domestic arbitrations where parties have opted out of Schedule 2 may be challenged only on the limited grounds prescribed by the Model Law: pro- cedural irregularity, non-arbitrability, and conflict with public policy. Arbitrators are not required to hold any particu- lar licence or formal qualification. AMINZ maintains accreditation standards for Fellows and Members, which in practice represent the principal markers of professional standing. There are no regulatory require- ments specific to the conduct of arbitral institutions. 3.8 Court Powers New Zealand courts take an explicitly pro-arbitration approach, giving effect to arbitration agreements wherever possible and intervening only within the lim- its prescribed by the Act and the Model Law. The High Court has jurisdiction to grant interim relief in support of arbitral proceedings regardless of whether the seat is in New Zealand. Considerations of com- ity carry reduced weight where the court’s role is to uphold the parties’ contractual bargain. Under Sec- tion 184 of the Evidence Act 2006, the court may also compel a New Zealand-based person to give evidence in aid of an arbitration seated outside New Zealand, extending judicial assistance beyond the ter- The circumstances in which courts will intervene in an arbitration are intentionally limited. A court may remove an arbitrator where there are justifiable doubts as to their impartiality or independence, or where they are unable or unwilling to perform their functions. A party may apply to the High Court to set aside an award on the grounds prescribed by Article 34 of the Model Law. The grounds are narrow: procedural irregularity, including a party being unable to present its case; an award exceeding the scope of the sub- mission to arbitration; the tribunal being constituted ritorial limits of the seat. 3.9 Court Intervention
inconsistently with the parties’ agreement; non-arbi- trability; and conflict with New Zealand public policy. Where Schedule 2 applies, a party may seek leave to appeal to the High Court on a question of law. Leave will be granted only where the question substantially affects the rights of one or more parties and the tribu- nal’s determination is at least open to serious doubt. 3.10 Relief Arbitral tribunals have broad powers to grant relief, including monetary damages, declarations, orders for specific performance, and injunctions, generally equivalent to those available from the High Court sub- ject to any contrary agreement. New Zealand was the first country to adopt the 2006 UNCITRAL revisions on interim measures, now found in Articles 17 to 17M of Schedule 1. A tribunal may order preservation of the status quo, restraint of action likely to harm the arbitral process, preservation of assets, and security for costs. Such measures are binding and enforceable by application to the compe- tent court. The courts exercise an ancillary jurisdiction under Article 9, including before a tribunal has been constituted, and will generally decline to intervene where the tribunal is able to act. Costs are at the tribunal’s discretion, with reasonable contribution to costs incurred the standard applied in most arbitrations, and indemnity costs reserved for exceptional cases. In addition to arbitration, the principal ADR proce- dures available for resolving commercial disputes in New Zealand are mediation, negotiation, expert deter- mination, and adjudication. Mediation is the most widely used method. It is avail- able on an ad hoc basis or through institutions and contractual ADR clauses commonly provide for it as a mandatory first step before arbitration or litigation may be commenced. Negotiation is the most informal and flexible option, requiring no institutional involve- 4. Other ADR Methods 4.1 ADR Procedures
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