As the Court commented in another recent case (Burri v Schuler Brothers) concerning whether a valuation dispute could be litigated in Court or had to be arbitrated: “Doubt attaches to whether the [dispute resolution] clause was shaped by legal advice. It will be noted it is silent about time, or what happens if the valuation process bogs down because of delay or some other impediment. Therein lies the problem.”3
Specific lessons highlighted by these cases include:
• The need to ensure that any body which is to appoint an arbitrator, mediator or expert is still in existence, willing and able to do so – check first if there is any doubt.
• The clause should make clear the nature of the dispute resolution process involved, e.g. mediation, arbitration or expert determination.
• The clause should specify clearly any required qualifications of the person to be appointed to resolve the dispute.
• The clause should have clear timelines for steps involved in the dispute resolution process, e.g. by what date a party has to object to a valuation, or how long valuers have to try and reach agreement before a party can submit an issue to arbitration.
[1]Tumatatoro Limited v HJS AG Limited & Ben Vanderkolk [2019] NZHC 1047
[2] The parties’ conduct and Federated Farmers’ refusal to appoint a farm management consultant meant that clause 48 was unworkable as an expert determination, and abandoned as an arbitration agreement.
[3]Burri v Schuler Brothers Limited [2019] NZHC 1169 at [4]
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ReSolution | Mar 2020
End Notes
about the author
Fiona Tregonning
Special Counsel
Fiona is a general commercial litigation and arbitration lawyer. She leads the Arbitration team within the MinterEllisonRuddWatts National Disputes Resolution Division and has a wealth of experience in working with clients to effectively resolve complex and international disputes across a range of industry sectors. a number of industries.