On 17 October 2016, the Arbitration Amendment Act 2016 received Royal Assent. The Act comes into force on 1 March 2017 and amends the Arbitration Act 1996 by:
a. broadening the definition of ‘arbitral tribunal’ in section 2 to include arbitral institutions and emergency arbitrators which will allow awards rendered by emergency arbitrators to be enforced upon application to a court of competent jurisdiction; and
b. adding a new section 6A requiring the Minister of Justice to appoint a suitably qualified body to appoint arbitrators in accordance with article 11 of Schedule 1, instead of the High Court (article 1 of Schedule 1 provides a default appointment procedure for the appointment of domestic arbitral tribunals in the absence of agreement).
It remains to be seen which body will be instructed to assist with such appointments, but one obvious option would be the New Zealand Dispute Resolution Centre (NZDRC) as the amendments require the body to be ‘suitably qualified’ and NZDRC can certainly claim to have appropriate expertise, experience and resources.
These amendments are to be welcomed and will act to increase the attractiveness of New Zealand as an international arbitral seat.
Arbitration and the Olympic Games
The 2016 Rio Olympics saw two cases heard before the Ad Hoc division of the Court of Arbitration for Sport (CAS), regarding disputed nomination and team replacement. Sports related conflicts are resolved before CAS, and in 1996, the Ad Hoc division of CAS was created to deal specifically with sports disputes related to the Olympic Games expeditiously. The Arbitration Commission of the Rio de Janeiro Bar Association assembled a group of pro bono arbitration lawyers to represent athletes in any disputes referred to the Ad Hoc division of CAS during the 2016 Olympic Games. Representing athletes from South Sudan and Vanuatu, the pro bono team acted in two cases. The first dispute was regarding the nomination of a South Sudan athlete who was replaced by an athlete with allegedly inferior athletic performance, while the second dispute concerned a beach volleyball duo from Vanuatu who believed they should have replaced an Italian duo who tested positive for doping. While the cases were ultimately dismissed by CAS, both examples demonstrated the efficiency and effectiveness of the expedited Ad Hoc division and the proficiency of the pro bono team, with the second case submitted to CAS within less than seven hours from the first contact from the Vanuatu representative, and an award made by CAS within 13 hours from first contact.
UK Courts Reluctant to Intervene in Arbitrations
A recent UK case demonstrated the reluctance of UK Courts to intervene in arbitrations beyond what is expressly provided for in the Act, regardless of whether the parties have agreed to court involvement. In Enterprise Insurance Company Plc v U-Drive Solutions (Gibraltar) Limited [2016] EWHC 1301 the court reinforced the finality of arbitral awards, and declined the right to appeal. The court distinguished awards from procedural orders, reinforcing that procedural orders carry no right of appeal under sections 68 or 69 of the UK Arbitration Act 1996 (the Act). The initial arbitration between Enterprise and U-Drive concerned a dispute over breach of a