ReSolution Issue 18, September 2018 | Page 33

Where clause 1 of Schedule 2 applies, it provides a quick and effective means of securing the appointment of an arbitral tribunal in the face of delay or obfuscation by another party to the arbitration agreement.

Note that article 11 of Schedule 1 applies to an international arbitration unless the parties have expressly opted into clause 1 of Schedule 2 of the Act. Under section 6(2) of the Act, Schedule 2 of the Act applies to an international arbitration only if the parties so agree.

How can you avoid the problem altogether? the answer is really quite simple!

All that is required is for you to ensure that your contracts have effective arbitration clauses included in them – not the outdated, complicated, multi-tiered, and often unenforceable dispute resolution/arbitration clauses we frequently see still being used today.

NZDRC and NZIAC have developed comprehensive suites of Rules for Commercial Arbitration that are robust and certain, yet innovative in their commercial commonsense approach to challenging issues such as appointment, urgent interim relief, expedited procedures, summary procedures for early dismissal of claims and defences, joinder, consolidation, multiple contracts, confidentiality, representation, mediation, arbitral secretaries, expert evidence, appeals, and costs.

The Rules provide both a framework and detailed provisions to ensure the efficient and cost effective resolution of commercial disputes by arbitration. The Rules are set out in a manner designed to facilitate ease of use and may be adopted by agreement in writing at any time before or after a dispute has arisen.

The Rules are intended to give parties the widest choice and capacity to adopt fully administered procedures that are fair, prompt, and cost effective, and that provide a proportionate response to the amounts in dispute and the complexity of the issues involved.

The primary advantages of arbitration under NZDRC’s and NZIAC’s Arbitration Rules include:

•one simple model clause – the rules act as a default filter for expedited procedures according to the value of the dispute

•a sole arbitrator will be appointed unless the parties agree otherwise

•lower value claims (claims under NZ$2.5M) are dealt with under 45, 60 and 90 day expedited Rules by default in domestic arbitrations and 60, 90 and 120 day expedited rules by default in international arbitrations – claims under NZ$250K will dealt with on the documents by default

•no emergency arbitrator – instead, where urgent interim relief sought, a sole arbitrator or Presiding Arbitrator will be appointed by NZDRC/NZIAC within one working day to determine any application for urgent interim relief

•all fees are fixed and/or capped

•express provisions relating to mediation (arbitral tribunal must stay arbitration proceedings where parties agree to mediate - arbitrator may act as mediator subject to strict rules of conduct)

•opt-in appeals procedures

•rules governing appointment and role of arbitral secretaries – payment comes out of arbitral tribunal’s capped fee allowance which reflects the efficiency the arbitral secretary is said to bring to the process

•code of conduct for expert witnesses

•clear disclosure provisions

•rules governing representation – obligation bearing on representative is an obligation or duty of represented party with costs consequences in the event of breach

For domestic contracting parties who wish to have future disputes resolved by arbitration under NZDRC’s Arbitration Rules and fully administered services, the following model clause is recommended for inclusion in contracts:

Any dispute or difference arising out of or in connection with this contract, or the subject matter of this contract, including any question about its existence, validity, or termination, shall be referred to and finally resolved by arbitration in accordance with the Arbitration Rules of the New Zealand Dispute Resolution Centre.

For parties who have their places of business in different States who wish to have future disputes resolved by arbitration under NZIAC’s Arbitration Rules and fully administered services, the following model clause is recommended for inclusion in contracts:

Any dispute or difference arising out of or in connection with this contract, or the subject matter of this contract, including any question about its existence, validity, or termination, shall be referred to and finally resolved by arbitration in accordance with the Arbitration Rules of the New Zealand International Arbitration Centre.

Parties to an existing dispute that have not incorporated the NZDRC or NZIAC Model Clause into a prior agreement may agree to refer that dispute to Arbitration under the NZDRC or NZIAC Arbitration Rules by signing the Arbitration Agreement at Appendix 2 to those Rules.

The primary objective of modern commercial arbitration must be the fair, prompt, and cost-effective determination of any proceeding in a manner that is proportionate to the amounts in dispute and the complexity of the issues involved. Sensible contracting, by including an effective arbitration clause, is the first step to achieving those objectives.

Securing the appointment of an arbitral tribunal - conT.

August 2018 | www.nziac.com | | ReSolution | 36

The primary objective of modern commercial arbitration must be the fair, prompt, and cost-effective determination of any proceeding in a manner

that is proportionate to the amounts in dispute and the complexity of the issues involved.