New amendments to the New Zealand Arbitration Act 1996 (Act) received Royal Assent on 17 October 2016, and will come into force on 1 March 2017.
There are two key amendments to the Act:
- Definition of ‘arbitral tribunal’
Previously, an ‘arbitral tribunal’ had only been defined in the Act to include sole arbitrators and panels of arbitrators. The term has now been broadened, to accommodate arbitral institutions, as well as emergency arbitrators. This follows the approach taken in other leading jurisdictions, such as Singapore. [1]
Under the Act, interim measures and arbitral awards rendered by arbitral tribunals are enforceable in New Zealand, upon an application to a competent court. As such, the amendment will allow decisions rendered by emergency arbitrators (who will now be covered by the term ‘arbitral tribunal’) to be enforceable in the same way.
- Assistance with arbitral appointments
A new requirement has been added that parties must seek the assistance of a body appointed by the Ministry of Justice, instead of the High Court, where an arbitrator needs to be appointed in accordance with section 11 of the Act. A party may only subsequently apply to the High Court to appoint an arbitrator, where:
- the body appointed by the Ministry of Justice is unable or fails to appoint an arbitrator, within 30 days of receiving a request to do so; or
- a dispute arises in respect of the appointment process that the appointed body uses.
As the amendments require the body to be ‘suitably qualified’, it will likely have greater expertise and resources in arbitral appointments than the High Court. This may address concerns that courts have previously looked to local (and familiar) practitioners for appointments, even if not the most suited for the relevant dispute. [2]
It remains to be seen which body will be instructed to assist with such appointments, but one option could be the New Zealand International Arbitration Centre (NZIAC), while another may be the Arbitrators’ and Mediators’ Institute of New Zealand Inc (AMINZ).
These amendments to New Zealand’s arbitration landscape are to be welcomed, and will increase the attractiveness of New Zealand as an international arbitral seat to parties.
For further information, please contact Brenda Horrigan, Elizabeth Macknay, or your usual Herbert Smith Freehills contact.
Disclaimer
Herbert Smith Freehills LLP has a Formal Law Alliance (FLA) with Singapore law firm Prolegis LLC, which provides clients with access to Singapore law advice from Prolegis. The FLA in the name of Herbert Smith Freehills Prolegis allows the two firms to deliver a complementary and seamless legal service.