NEW ZEALAND Law and Practice Contributed by: Fionnghuala Cuncannon and Kate Muirhead, Cuncannon
lution Centre. Contractual ADR clauses often provide for the appointment of a mediator or arbitrator by the parties’ agreement, or by (for example) the President of AMINZ if no agreement is reached after a period of time.
pute was not capable of arbitration, or if the award is inconsistent with New Zealand public policy. Upon being served with an application to enforce an arbitral award, a party may file its own application seeking an order refusing recognition and enforce- ment of the award. Until this application is determined, the original enforcement application is stayed. 13.4 Procedure for Enforcing Domestic and Foreign Arbitration There is one procedure for enforcing foreign and domestic arbitral awards in New Zealand. Awards may be entered as a judgment of the High Court by letter to the court registry, with the agreement of all parties. 14. Outlook 14.1 Proposals for Dispute Resolution Reform As highlighted throughout this chapter, the New Rules amount to a sea change in the way that civil litigation is conducted in the New Zealand High Court. They are designed to disincentivise current practices that impede an efficient and effective civil justice system by, for example: • abolishing discovery in ordinary proceedings; • requiring parties to serve their factual evidence at the outset; and • using judicial issues conferences to seek to narrow the issues in dispute and to promote ADR. The New Rules come into force on 1 January 2026. 14.2 Growth Areas Class actions are a key area of growth for commercial disputes, notwithstanding the absence of a specific statutory class actions regime. That growth may be enhanced by a 2024 Court of Appeal judgment con- firming that the High Court has jurisdiction to make common fund orders (CFOs) ( Simons v ANZ ). CFOs address the issue of “free rider” claimants who get the benefit of a successful outcome in a class action with- out contributing to a funder’s costs. CFOs address this issue by imposing payment terms agreed by a litigation funder and signed-up class members on all class members.
13. Arbitration 13.1 Laws Regarding the Conduct of Arbitration
The conduct of arbitration is governed by the Arbitra- tion Act 1996, which adopts the UNCITRAL Model Law. The Arbitration Act provides for a mandatory set of rules for both domestic and international arbi- trations, and a number of optional rules that can be adopted in domestic arbitrations on the agreement of the parties. Among these are the option to refer pre- liminary questions of law to the High Court, and the right to appeal to the High Court on questions of law. If the parties opt out of these rules, an arbitral award can only be challenged as described in 13.3 Circum- stances to Challenge an Arbitral Award . 13.2 Subject Matters Not Referred to Arbitration There are specific subject matters that may not be referred to arbitration in New Zealand. The High Court may set aside an arbitral award if it finds that the sub- ject matter of the dispute is not capable of settlement by arbitration under New Zealand law, or if the award is in conflict with the public policy of New Zealand. 13.3 Circumstances to Challenge an Arbitral Award Unless the parties to a domestic arbitration have agreed to the right to appeal on questions of law, there is no right to appeal or apply for judicial review of an arbitral award in court. A party may apply to the High Court to have an arbitral award set aside. This requires proof of some proce- dural irregularity in the making of the award. Exam- ples of procedural irregularities include that the party was not given notice of the arbitration or allowed to present its case, and that the award went beyond the terms of the dispute submitted to arbitration. The High Court may also set aside an arbitral award if the dis -
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