[Home] [Databases] [WorldLII] [Search] [Feedback] New Zealand Law Commission

[Database Search] [Name Search] [Previous] [Next] [Download] [Help]

Preface

THE ARBITRATION ACT 1996 (The Act) was enacted by Parliament following the introduction of a Private Member’s Bill by Mr Peter Hilt MP. The Bill was based on a statute recommended by the Law Commission in its report Arbitration.¹

The Act repealed and replaced the Arbitration Act 1908. The 1908 Act had been modelled on English arbitration procedures. The 1996 Act is based on an international model developed by the United Nations Commission on International Trade Law (UNCITRAL). ²

Coincidentally, in 1996, the Westminster Parliament enacted a new arbitration law which was also based on the UNCITRAL Model Law. There are, however, important differences in approach between the two Acts which have informed our deliberations on some of the issues in this report.

As we observed in our preliminary paper the Act appears to be working well.³ Relatively few flaws or ambiguities have been identified in decided cases. The courts appear to be applying the Act in accordance with underlying themes, viz:

• party autonomy;
• reduced judicial involvement in the arbitral process;
• consistency with laws in other jurisdictions;
• increased powers for the arbitral tribunal.

Preliminary Paper 46 raised some specific (and important) problems identified in the operation of the Act. In paragraph 3 of the discussion paper we said:

Finding solutions to these problems will improve significantly the way in which the Act works. That should, in consequence, add to the viability of arbitration as a means of resolving disputes privately in New Zealand. It should also encourage offshore entities to agree to arbitration in New Zealand under the New Zealand Act.⁴

We have had the advantage of a number of submissions addressing the issues raised in our preliminary paper. A list of submitters appears as appendix C. We gratefully acknowledge the assistance that submitters have provided to us.

In particular, we wish to thank the Arbitrators’ and Mediators’ Institute of New Zealand Inc (AMINZ) and the New Zealand Law Society (NZLS) for their assistance in ensuring that a wide audience was consulted. The authors of the AMINZ submission included Mr David Williams QC and Mr Fred Thorp, Barrister, who presented, in September 2001, a travelling seminar for NZLS entitled Arbitration for the 21st Century – A Practical Guide.⁵ The penultimate draft of our preliminary paper was included in the materials circulated for that seminar. This enabled the presenters to obtain responses from seminar participants on the issues raised. We have found the assistance gained through that collaboration to be of great benefit.

We follow the same order in this report as in our preliminary paper. We repeat, where necessary, background information from our preliminary paper to assist readers in understanding the issues. We provide a more detailed analysis of the problems and suggest solutions. In part 6 we deal briefly with some additional issues raised by submitters.

The drafting of a Bill, to reflect the recommendations that we have made in this report, is underway. The Commission is currently liaising with the Parliamentary Counsel Office and interested parties on issues relating to the Bill. In this regard we would like to express our thanks to Chief Parliamentary Counsel, Mr George Tanner, and to Mr Renato Guzman, Parliamentary Counsel, for their assistance to date. Ultimately, we decided we publish the report prior to the Bill being finalised. One reason for this was that AMINZ intend to have a session on the report at its February 2003 conference. When the draft Bill is completed, the Commission may issue a supplementary report to accompany it.

On 29 January 2003, the Privy Council delivered its decision in Associated Electric and Gas Insurance Services Ltd v European Reinsurance Company of Zurich. The case dealt (in part) with the issue of the implied duty of confidentiality, which is one of the main topics dealt with in this report. The publication process was already too well advanced to allow us to refer to the Privy Council’s advice. We will, however, (obviously) have regard to the decision when finalising the draft legislation.

The Commissioner responsible for preparation of this report was Paul Heath QC. Research and some of the writing was undertaken by Michael Josling, to whom the Commission expresses its appreciation.