Introduction Overview

This seminar is the third on the topic of arbitration organised by the New Zealand Law Society since the Arbitration Act 1996 (the “Act”) was enacted.

The first two seminars were presented by David Williams QC and Fred Thorp in 1996 (the “1996 NZLS Arbitration seminar”) and 2001 (the “2001 NZLS Arbitration seminar”) respectively. The 1996 NZLS Arbitration seminar focused on the legislative history of the Act. The 2001 NZLS Arbitration seminar focused on the proposed amendments to the Act then being contemplated.

This seminar seeks to explore how the Act has been applied since 2001, with the main objective of assisting practitioners to understand the extent to which parties are free to determine their own procedure, and when the New Zealand courts are empowered to supervise and control arbitral proceedings. In the view of the authors, a clear understanding of these ground rules empowers parties to turn the core features of arbitration – procedural flexibility, confidentiality and ready enforceability – into practical advantages.

In terms of structure, this seminar will:

• in this ch 1, briefly restate the legal nature of arbitration as a largely free‑standing dispute resolution system;

• in ch 2, explain the mechanics of the Act, with a particular examination of the balance drawn between procedural flexibility and minimum standards of natural justice;

• in ch 3, discuss the changes made by the Arbitration Amendment Act 2007;

• in ch 5, examine the changed and reduced – but still essential – role of the Courts; and

• in ch 6, digest what the authors consider to be the 10 most important court decisions relating to arbitration over the last decade.

As in previous seminars, the practical operation of the Act will be emphasised. This is done primarily through ch 4, which relates to setting up and conducting an arbitration from the perspective of both counsel and arbitrator; and through several appendices which will be explored during the seminar itself.

Finally, the increasingly important topics of international commercial arbitration (ch 7) and investment treaty arbitration (ch 8) will be considered, albeit briefly. While those topics may not be of such importance in the daily work of New Zealand practitioners, they are of general relevance since the techniques of international arbitration are becoming influential in domestic arbitral proceedings. A prime example of this cross-fertilisation is the International Bar Association Rules on the Taking of Evidence in International Arbitration (the “IBA Rules”), which are being used increasingly in domestic arbitrations in New Zealand.

The authors are anxious to avoid repetition of matters covered in the earlier seminars, particularly the 2001 NZLS Arbitration seminar. Where a topic has been adequately covered in that seminar, this will be noted.