Musings

John Walton inducted as a Fellow of the International Academy of Mediators

It gives me great pleasure to announce that at the joint AMINZ/IAM conference, I was inducted into the International Academy of Mediators as a Fellow.  Particular thanks go to Tracy Allen and Tony Willis for supporting my membership.

The International Academy of Mediators is an invitation only which promotes mediation as a separate discipline and profession.  It is truly an honour to join such prestigious company in the mediation field.

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Construction Contracts Amendment Act 2015 – four new regimes

When the Construction Contracts Amendment Act 2015 come into force on 1 December 2015, many could be forgiven for assuming that all the revisions took effect from that date.  Nothing could be further from the case.

Edit – a revised version of this paper was published in the 2 June 2016 edition of the New Zealand Law Society magazine, LawTalk.  Click here to read the online version.

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John Walton featured in NZLS online magazine LawPoints

Each week, the New Zealand Law Society puts out an online newsletter with updates on developments in the law,  news items, advertising seminars and an interest article on People in the law.

This week, I feature.

Hot biker NZLS

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By |February 11th, 2016|Uncategorized|

Philip Morris loses its case against Australia over plain packaging of tobacco

Last Friday, 18 December 2015, the arbitral tribunal appointed to determine the dispute between Philip Morris Asia Limited v Commonwealth of Australia issued its award declining jurisdiction.  While we do not have access as yet to the formal award, this is a blow for Philip Morris as it probably spells the end of its fight against plain packaging.

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By |December 22nd, 2015|Arbitration, Dispute Resolution|

John Walton Appointed President of AMINZ

I am pleased to announce that with effect from Wednesday, 2 December 2015, I have been appointed as the President of the Arbitrators’ & Mediators’ Institute of New Zealand.

I am incredibly grateful and humbled by the support of my colleagues on Council and the membership more generally.  I am somewhat overwhelmed by the messages of support which have come in since the announcement was made this morning – please excuse me if it takes me a while to acknowledge you all.  My congratulations also to Royden Hindle, who has taken over the role of Vice President.

We have a significant number of opportunities coming up over the next few months, with the AMINZ-IAM joint conference in Queenstown on 3-5 March 2016, and the joint ACICA-AMINZ hosting of the ICCA Congress in Sydney in March 2018, followed by a one-day event in Queenstown.  There will also be challenges, I am sure, and I will work with the Council and the membership to meet those challenges as they arise.

It would be remiss of me not to also acknowledge my predecessor, David Patten.  AMINZ has achieved a lot under David’s presidency.  I have enjoyed working with David very much over the last 18 months, and I wish him well.

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By |December 4th, 2015|Dispute Resolution|

Construction Contracts Amdt Act 2015 – in force on Tuesday

The Construction Contracts Amendment Act 2015 was passed into law on 22 October 2015; the Amendment Act, and the Construction Contracts Amendment Regulations 2015 made under it, come into force on 1 December 2015.  That’s next Tuesday!

There is, however, no reason to panic!

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Construction Contracts Amendment Bill 2015 to pass today

Yesterday, 22 September, the Minister introduced Supplementary Order Paper 106 into the House reversing the earlier, and highly controversial aspects of Supplementary Order Paper 52 (particularly in relation to the appointment of adjudicators).  The Bill is now pretty much as it was reported back to the House following the Select Committee hearings, including the new provisions relating to statutory trusts for retentions.

The Bill was debated until the House rose at 10.00 last night.  It is likely that the Bill will pass into law when the debate resumes at 2.00 pm today.

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Judge orders mediation over wastewater plant dispute

After years of odour and insect problems with the Whanganui District Council’s wastewater treatment plant at Airport Road, the District Council has finally taken the step to sue the facility’s designers MWH Global.  The estimated cost of replacing the plant is reported to be $38 million, which is a significant burden for the people of Whanganui, and a potentially significant liability for MWH Global.

The relationships and responsibilities of contractors and consultants in infrastructure development can be complex, and liability for design and performance failures hard to pin; hence the truism that it is never a good idea to sue your consultants.  In a triumph of pragmatism over the thorny issues of liability in negligence, Justice Denis Clifford has ordered the parties to mediation.

If ever there was a case of a sensible suggestion, this must surely be it.  We can only hope for the sake of the people of Whanganui that both parties recognise the opportunity for what it is, and reach a realistic agreement to resolve the issue.

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International Commercial Arbitration in the Pacific Rim

While we can take some pride that New Zealand is:

  • rated as the least corrupt country in the World, alongside Denmark, and
  • a Model Law country with an impeccable Arbitration Act and supportive judiciary and legislature,

we are perceived as being a long way from the rest of the World.

It it is fair to say that there is a general lack of awareness of the opportunities which international arbitration provides.  That is something which needs to change, as once the Trans Pacific Partnership Agreement comes into effect, its participants will represent 40% of Global GDP and one third of World Trade.  New Zealand’s recent adoption of the WTO’s Agreement on Government Procurement (GPA) establishes a level playing field for New Zealand companies to compete on the same terms as local firms for government procurement contracts in seven Pacific Rim countries (including USA) and the European Union; more critically, the GPA includes the WTO’s Understanding on Rules and Procedures Governing the Settlement of Disputes, which will ultimately open the way for arbitration.  It also has to be recognised that the People’s Republic of China is very keen to establish its own international relations with its trading partners, without the necessity for the approval of the US Congress – Australia and New Zealand were early to recognise PRC’s right to take its place at the United Nations, in December 1972 (eight years before the USA), which is not overlooked by the PRC.

International commercial arbitration is a growing with trade in the Pacific Rim, and it is time for New Zealand to step up to the mark in relation to international dispute resolution.  We have a great reputation for independence and fairness – but, we have been notable by our absence in this sphere to date.

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Court of Appeal upholds stay of Danone proceedings

Last week, the Court of Appeal upheld the High Court’s conditional stay of Danone’s proceedings against Fonterra.

The judgment is available on the AMINZ website here.

In summary, the Court of Appeal reviewed the exercise by the High Court of its inherent discretion to stay proceedings, it found that the arbitration in Singapore was proceeding expeditiously, that the arbitration would probably resolve all the issues between the parties, and Danone would not be unduly prejudiced by the delay in having to recommence any proceedings once the arbitration award had been issued.

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By |November 9th, 2014|Arbitration, Dispute Resolution|