While AMINZ refers to itself as the default body for the appointment of arbitral tribunals, this is only partly correct, and its jurisdiction is constrained to certain circumstances only, namely: • in relation to international arbitrations where the parties have not agreed on a procedure for appointing the arbitral tribunal; and • in relation to domestic arbitrations only where a third party, including an institution, fails to perform any function entrusted to it under an appointment procedure agreed upon by the parties. Otherwise AMINZ simply has no jurisdiction or power to make any appointment in relation to domestic arbitrations and any appointment that is made other than by agreement of the parties will be invalid, and any award made pursuant to such an appointment will be unenforceable. I should add that the appointed body is not permitted to charge parties or their representatives for making appointments under section 6A(1), which condition I suspect simply reflects the nature of the role and the very few cases the Ministry expected to have recourse to those appointment procedures and services. (I paraphrase Catherine’s article from here on) In every other case, the default appointment procedures set out in clause 1 of schedule 2 to the Act apply. Schedule 2 of the Act applies to every domestic arbitration unless the parties agree otherwise (section 6). The learned authors of Williams & Kawharu on Arbitration 2nd Ed, state clearly at 5.4.4 and 5.4.5: If cl 1 of sch 2 to the NZ Act applies to a dispute then the parties will be deemed to have agreed upon the appointment procedures specified in cl 1 for the purpose of art 11(2) of sch 1. Clause 1 applies by default to domestic arbitrations and to international arbitrations if chosen by the parties (which would be unusual). In effect, in relation to most domestic arbitrations, the provisions of art 11 do not apply: cl 1 applies instead. … The attraction of default appointments under cl 1(4) is that obstacles to the appointment of an arbitrator can be remedied by a party without having to involve the High Court (with the expense and other disadvantages that recourse to the court in arbitral proceedings entails). It was enacted to provide an alternative to the default appointment procedure in art 11 of sch I, which is based on the UNCITRAL Model Law on International Commercial Arbitration 1985 (the Model Law) and is better suited to large international commercial arbitrations.
Clause 1 of Schedule 2 provides default procedures for appointing the arbitral tribunal. Those procedures constitute the agreed procedure for appointing the arbitrator or arbitrators for the purpose of article 11(2). Where clause 1 of Schedule 2 applies, that clause modifies article 11 of Schedule 1 and excludes the jurisdiction of the appointed body to appoint an arbitrator. AMINZ may only intervene and appoint an arbitrator in its role as the appointed body where clause 1 of Schedule 2 does not apply.