After more years and considerably more work than anticipated, on 22 June 2017 the AMINZ Council approved the AMINZ Arbitration Rules.
The Rules are intended for both domestic and international arbitrations, and they therefore tread a fine line between offering clarity, flexibility and apparent simplicity while addressing some of the more complex issues high value international arbitration requires. To that end, the drafting committee has been ruthless in monitoring international trends in arbitration rules and adopting those concepts which seemed to us to be most relevant. There have been a number of rules published since this project started (notably, the LCIA, SIAC and ICC); we have assessed each to consider how and to what extent they contain procedures which may be of benefit.
We hope that the new Rules will find favour, providing a New Zealand version of what is state of the art internationally while being user friendly. An Emergency Arbitrator Protocol has also been provided for those wanting interim measures and/or preliminary orders without adopting the Rules and, of course, avoiding recourse to the High Court.
A PDF is available online, and hard copies will be published later in the year.
The Rules are consistent with the New Zealand Arbitration Act 1996, but they have been drafted to be jurisdictionally neutral. Model clauses have been included in the Preamble.
Key provisions include:
- detailed procedures for the commencement of the arbitral proceedings
- the adoption of IBA Guidelines and Rules on party representation, conflicts of interest and evidence (as guidance, rather than being binding on the parties)
- the option of supervision by a Registrar (if required) and provision for a tribunal secretary
- appointment of the arbitral tribunal using the AMINZ Appointments Policy
- the option for expedited arbitration for low value or less complex claims
- the ability for the arbitral tribunal to summarily dismiss proceedings which manifestly lack legal merit
- procedures for the appointment of an emergency arbitrator for the provision of interim measures and preliminary orders (including ex parte applications where notice would defeat the purpose of the orders sought)
- allowing for an early issues hearing (commonly referred to as a Kaplan Opening, in honour of renowned international arbitrator Neil Kaplan)
- the application of the AMINZ Guidelines on Awarding Costs in Arbitration
- appeals to the AMINZ Arbitration Appeals Tribunal (if there are to be appeals)
- the use of the AMINZ Stakeholder Account for holding advances on the arbitral tribunal’s costs
More generally, the parties and the arbitral tribunal acknowledge that it is the objective of the proceedings that the dispute is resolved fairly, promptly, cost effectively and in a manner which is proportionate to the dispute and its importance to the parties.
While the Rules cover everything which the drafting committee felt was useful and relevant, it is this last issue, the objective of the arbitration, which is most important. We can but hope that all involved take this acknowledgement to heart.