BuildLaw BuildLaw: Issue 23, March 2016 | Page 27

and made factual findings on the evidence submitted in accordance with the arbitration agreement.5

The application to set the award aside was dismissed, and the application by BSC to enforce the award was granted.

Comment

The decision confirms that where the parties in an arbitration have agreed to the ‘on the documents’ procedures set out in the Rules in order to have a prompt outcome, then the Court will hold them to that.

In reaching its decision, the Court referred to and placed significance on the clauses of the Expedited Arbitration Rules which set out the purpose of the Rules (I.e., “to ensure that the arbitration is conducted fairly, promptly and cost effectively and in a manner that is proportionate to the amounts in dispute and the complexity of the issues involved”6 ) and the Overriding Objective (i.e., to enable the Arbitrator to produce a final award including as to costs within 45 working days after appointment7). As Heath J said:

The contractual provisions governing delivery of Points of Claim, Defence and Counterclaim, together with sworn statements and documentary evidence, contemplated that Mr Withers would put his best case forward on his counterclaim in sworn statements filed in support, but would not have any opportunity to reply to sworn statements and supporting documents provided by BSC in response. Those arrangements evidence an intention, on the part of both parties, to reduce procedural safeguards otherwise available to minimise the risk of incorrect factual findings. That was the price that they were prepared to pay to obtain a prompt resolution of their dispute.8

The judgment is a welcome confirmation that procedures in the BDT’s Rules for Expedited Commercial Arbitration provide a dispute resolution mechanism that is both proportionate to what is in issue, and effective in the end result.


END NOTES:

1 21 August 2015 per Heath, J.
2 The case concerned an agreement to arbitrate on the BDT’s ECA 45 Agreement to Arbitrate and Rules for Expedited Commercial Arbitration on the Documents: see http://www.buildingdisputestribunal.co.nz/ARBITRATION/ARBITRATION+RULES.html (referred to as ‘the Rules’). These are the same as the ECA 45 Agreement to Arbitrate and Rules for Expedited