ReSolution Issue 21, June 2019 | Page 21

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Securing the appointment of an arbitral tribunal - CONT. Cont...

•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

•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.

DOUBLE EDITION

Maura McIntosh

Professional support consultant at Herbert Smith Freehills

London

Herbert Smith Freehills is one of the world’s leading professional services businesses, bringing together the best people across 27 offices, to meet all your legal services needs globally.

ReSolution | Mar 2019

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ReSolution | June 2019