This book is only available in PDF format

Authors: Lauren Lindsay, Ben Prewett
Published: 29 April 2024
Pages: 26

Introduction

Access to justice has rightly been recognised as an issue of existential importance for the system of civil justice in New Zealand. The New Zealand Bar Association formed a Working Group into Access to Justice and in 2018 published a report on the subject. The New Zealand Law Society has an Access to Justice Committee and in December 2021 published a research report on the subject. In November 2022 the Rules Committee published its Improving Access to Civil Justice report. In March 2020, the Chief Justice and the Secretary for Justice convened a workshop that resulted in the publication, in December 2023, of a National Strategy, Wayfinding for Civil Justice. Indeed, this is a subject that the Chief Justice has addressed repeatedly in extrajudicial speeches and writings.

A critical barrier to access to justice is the cost and delay of accessing civil justice in the High Court. The problem is bad and apparently getting worse. In the High Court in 2021 (the last year for which such data is available), the average age at disposal for trial adjudicated disposals was 830 days. In 2022, the median wait time to trial for general proceedings was 561 days, an increase of 116 days from 2021.

How, then, to address what the Rules Committee described as an “increasingly unmet need for civil justice”? This is a problem to which all lawyers must pay attention, whether in drafting dispute resolution clauses into contracts, or in considering how best to resolve a dispute that has already risen.

Arbitration is an important tool for meeting this need for civil justice, especially in the hands of skilled counsel and arbitrators. Having recourse to arbitration allows parties to bypass court backlogs. But arbitration offers the potential to minimise cost and delay even further. Arbitration frees parties of the one-size-fits-all procedural approach that typically applies to court proceedings. Instead, the procedural flexibility that is inherent to arbitration promises the possibility of a tailored approach. This paper addresses some of the techniques available to counsel in exercising this flexibility in arbitration, to ensure the prompt and cost-effective resolution of disputes for their clients.

Content outline

• Arbitration and its potential to enhance access to justice
• Key sources of law and rules for arbitration
• The arbitral tribunal: composition and powers
• Procedural and substantive techniques
• Challenging an award and enforcement of an award