This Act may be cited as the Arbitration Act 1996.
(2)
This Act shall come into force on the 1st day of July 1997.
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Interpretation
(1)
In this Act, unless the context otherwise requires,—
Arbitral tribunal means a sole arbitrator or a panel of arbitrators
Arbitration means any arbitration whether or not administered by a permanent arbitral institution
Arbitration agreement means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not
Award means a decision of the arbitral tribunal on the substance of the dispute and includes any interim, interlocutory or partial award
confidential information, in relation to arbitral proceedings,—
(a)
means information that relates to the arbitral proceedings or to an award made in those proceedings; and
(b)
includes—
(i)
the statement of claim, statement of defence, and all other pleadings, submissions, statements, or other information supplied to the arbitral tribunal by a party:
(ii)
any evidence (whether documentary or otherwise) supplied to the arbitral tribunal:
(iii)
any notes made by the arbitral tribunal of oral evidence or submissions given before the arbitral tribunal:
(iv)
any transcript of oral evidence or submissions given before the arbitral tribunal:
(v)
any rulings of the arbitral tribunal:
(vi)
any award of the arbitral tribunal
disclose, in relation to confidential information, includes publishing or communicating or otherwise supplying the confidential information
Party means a party to an arbitration agreement, or, in any case where an arbitration does not involve all of the parties to the arbitration agreement, means a party to the arbitration.
(2)
[Repealed]
Section 2(1) confidential information: inserted, on 18 October 2007, by section 4(1) of the Arbitration Amendment Act 2007 (2007 No 94).
Section 2(1) disclose: inserted, on 18 October 2007, by section 4(1) of the Arbitration Amendment Act 2007 (2007 No 94).
Section 2(2): repealed, on 18 October 2007, by section 4(2) of the Arbitration Amendment Act 2007 (2007 No 94).
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Further provision relating to interpretation
The material to which an arbitral tribunal or a court may refer in interpreting this Act includes the documents relating to the Model Law referred to in section 5(b) and originating from the United Nations Commission on International Trade Law, or its working group for the preparation of the Model Law.
To encourage the use of arbitration as an agreed method of resolving commercial and other disputes; and
(b)
To promote international consistency of arbitral regimes based on the Model Law on International Commercial Arbitration adopted by the United Nations Commission on International Trade Law on the 21st day of June 1985; and
(c)
To promote consistency between the international and domestic arbitral regimes in New Zealand; and
(d)
To redefine and clarify the limits of judicial review of the arbitral process and of arbitral awards; and
(e)
To facilitate the recognition and enforcement of arbitration agreements and arbitral awards; and
(f)
To give effect to the obligations of the Government of New Zealand under the Protocol on Arbitration Clauses (1923), the Convention on the Execution of Foreign Arbitral Awards (1927), and the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958) (the English texts of which are set out in Schedule 3).
6-
Rules applying to arbitrations in New Zealand
(1)
If the place of arbitration is, or would be, in New Zealand,—
(a)
The provisions of Schedule 1; and
(b)
Those provisions of Schedule 2 (if any), which apply to that arbitration under subsection (2),—
apply in respect of the arbitration.
(2)
A provision of Schedule 2 applies—
(a)
To an arbitration referred to in subsection (1) which—
(i)
Is an international arbitration as defined in article 1(3) of Schedule 1; or
(ii)
Is covered by the provisions of the Protocol on Arbitration Clauses (1923); or the Convention on the Execution of Foreign Arbitral Awards (1927), or both,—
only if the parties so agree; and
(b)
To every other arbitration referred to in subsection (1), unless the parties agree otherwise.
7-
Arbitrations and awards outside New Zealand
If the place of arbitration is not in New Zealand, articles 8, 9, 35, and 36 of Schedule 1, with any necessary modifications, apply in respect of the arbitration.
8-
Provisions applying where place of arbitration not agreed or determined
If it still has to be agreed or determined whether the place of arbitration will be in New Zealand, articles 8 and 9 of Schedule 1, with any necessary modifications, apply in respect of the arbitration.
9-
Arbitration under other Acts
(1)
Where a provision of this Act is inconsistent with a provision of any other enactment, that other enactment shall, to the extent of the inconsistency, prevail.
(2)
Subject to subsection (1), where a provision of this Act applies to an arbitration under any other enactment, the provisions of that other enactment shall be read as if it were an arbitration agreement.
Any dispute which the parties have agreed to submit to arbitration under an arbitration agreement may be determined by arbitration unless the arbitration agreement is contrary to public policy or, under any other law, such a dispute is not capable of determination by arbitration.
(2)
The fact that an enactment confers jurisdiction in respect of any matter on the High Court or a District Court but does not refer to the determination of that matter by arbitration does not, of itself, indicate that a dispute about that matter is not capable of determination by arbitration.
11-
Consumer arbitration agreements
(1)
Where—
(a)
A contract contains an arbitration agreement; and
(b)
A person enters into that contract as a consumer,—
the arbitration agreement is enforceable against the consumer only if—
(c)
the consumer, by separate written agreement entered into by the consumer and the other party to the contract after a dispute has arisen out of, or in relation to, that contract, certifies that, having read and understood the arbitration agreement, the consumer agrees to be bound by it; and
(d)
The separate written agreement referred to in paragraph (c) discloses, if it is the case, the fact that all or any of the provisions of Schedule 2 do not apply to the arbitration agreement.
(2)
For the purposes of this section, a person enters into a contract as a consumer if—
(aa)
that person is an individual; and
(a)
That person enters into the contract otherwise than in trade; and
(b)
The other party to the contract enters into that contract in trade.
(3)
Subsection (1) applies to every contract containing an arbitration agreement entered into in New Zealand notwithstanding a provision in the contract to the effect that the contract is governed by a law other than New Zealand law.
(4)
For the purposes of article 4 of Schedule 1, subsection (1) shall be treated as if it were a requirement of the arbitration agreement.
(5)
Unless a party who is a consumer has, under article 4 of Schedule 1, waived the right to object to non-compliance with subsection (1), an arbitration agreement which is not enforceable by reason of non-compliance with subsection (1) shall be treated as inoperative for the purposes of article 8(1) of Schedule 1 and as not valid under the law of New Zealand for the purposes of articles 16(1), 34(2)(a)(i), and 36(1)(a)(i) of Schedule 1.
(6)
Nothing in this section applies to—
(a)
a lease; or
(b)
a contract of insurance to which section 8 of the Insurance Law Reform Act 1977 applies.
Section 11(1)(c): substituted, on 18 October 2007, by section 5(1) of the Arbitration Amendment Act 2007 (2007 No 94).
Section 11(2)(aa): inserted, on 18 October 2007, by section 5(2) of the Arbitration Amendment Act 2007 (2007 No 94).
Section 11(6): substituted, on 18 October 2007, by section 5(3) of the Arbitration Amendment Act 2007 (2007 No 94).
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Powers of arbitral tribunal in deciding disputes
(1)
An arbitration agreement, unless otherwise agreed by the parties, is deemed to provide that an arbitral tribunal—
(a)
May award any remedy or relief that could have been ordered by the High Court if the dispute had been the subject of civil proceedings in that Court:
(b)
May award interest on the whole or any part of any sum which—
(i)
Is awarded to any party, for the whole or any part of the period up to the date of the award; or
(ii)
Is in issue in the arbitral proceedings but is paid before the date of the award, for the whole or any part of the period up to the date of payment.
(2)
Nothing in this section affects the application of section 10 or article 34(2)(b) or article 36(1)(b) of Schedule 1.
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Liability of arbitrators
An arbitrator is not liable for negligence in respect of anything done or omitted to be done in the capacity of arbitrator.
Except as the parties may otherwise agree in writing (whether in the arbitration agreement or otherwise), sections 14A to 14I apply to every arbitration for which the place of arbitration is, or would be, New Zealand.
Section 14: substituted, on 18 October 2007, by section 6 of the Arbitration Amendment Act 2007 (2007 No 94).
14A
Arbitral proceedings must be private
An arbitral tribunal must conduct the arbitral proceedings in private.
Section 14A: inserted, on 18 October 2007, by section 6 of the Arbitration Amendment Act 2007 (2007 No 94).
14B
Arbitration agreements deemed to prohibit disclosure of confidential information
(1)
Every arbitration agreement to which this section applies is deemed to provide that the parties and the arbitral tribunal must not disclose confidential information.
(2)
Subsection (1) is subject to section 14C.
Section 14B: inserted, on 18 October 2007, by section 6 of the Arbitration Amendment Act 2007 (2007 No 94).
14C
Limits on prohibition on disclosure of confidential information in section 14B
A party or an arbitral tribunal may disclose confidential information—
(a)
to a professional or other adviser of any of the parties; or
(b)
if both of the following matters apply:
(i)
the disclosure is necessary—
(A)
to ensure that a party has a full opportunity to present the party's case, as required under article 18 of Schedule 1; or
(B)
for the establishment or protection of a party's legal rights in relation to a third party; or
(C)
for the making and prosecution of an application to a court under this Act; and
(ii)
the disclosure is no more than what is reasonably required to serve any of the purposes referred to in subparagraph (i)(A) to (C); or
(c)
if the disclosure is in accordance with an order made, or a subpoena issued, by a court; or
(d)
if both of the following matters apply:
(i)
the disclosure is authorised or required by law (except this Act) or required by a competent regulatory body (including New Zealand Exchange Limited); and
(ii)
the party who, or the arbitral tribunal that, makes the disclosure provides to the other party and the arbitral tribunal or, as the case may be, the parties, written details of the disclosure (including an explanation of the reasons for the disclosure); or
(e)
if the disclosure is in accordance with an order made by—
(i)
an arbitral tribunal under section 14D; or
(ii)
the High Court under section 14E.
Section 14C: inserted, on 18 October 2007, by section 6 of the Arbitration Amendment Act 2007 (2007 No 94).
14D
Arbitral tribunal may allow disclosure of confidential information in certain circumstances
(1)
This section applies if—
(a)
a question arises in any arbitral proceedings as to whether confidential information should be disclosed other than as authorised under section 14C(a) to (d)); and
(b)
at least 1 of the parties agrees to refer that question to the arbitral tribunal concerned.
(2)
The arbitral tribunal, after giving each of the parties an opportunity to be heard, may make or refuse to make an order allowing all or any of the parties to disclose confidential information.
Section 14D: inserted, on 18 October 2007, by section 6 of the Arbitration Amendment Act 2007 (2007 No 94).
14E
High Court may allow or prohibit disclosure of confidential information if arbitral proceedings have been terminated or party lodges appeal concerning confidentiality
(1)
The High Court may make an order allowing a party to disclose any confidential information—
(a)
on the application of that party, which application may be made only if the mandate of the arbitral tribunal has been terminated in accordance with article 32 of Schedule 1; or
(b)
on an appeal by that party, after an order under section 14D(2) allowing that party to disclose the confidential information has been refused by an arbitral tribunal.
(2)
The High Court may make an order under subsection (1) only if—
(a)
it is satisfied, in the circumstances of the particular case, that the public interest in preserving the confidentiality of arbitral proceedings is outweighed by other considerations that render it desirable in the public interest for the confidential information to be disclosed; and
(b)
the disclosure is no more than what is reasonably required to serve the other considerations referred to in paragraph (a).
(3)
The High Court may make an order prohibiting a party (party A) from disclosing confidential information on an appeal by another party (party B) who unsuccessfully opposed an application by party A for an order under section 14D(2) allowing party A to disclose confidential information.
(4)
The High Court may make an order under this section only if it has given each of the parties an opportunity to be heard.
(5)
The High Court may make an order under this section—
(a)
unconditionally; or
(b)
subject to any conditions it thinks fit.
(6)
To avoid doubt, the High Court may, in imposing any conditions under subsection (5)(b), include a condition that the order ceases to have effect at a specified stage of the appeal proceedings.
(7)
The decision of the High Court under this section is final.
Section 14E: inserted, on 18 October 2007, by section 6 of the Arbitration Amendment Act 2007 (2007 No 94).
14F
Court proceedings under Act must be conducted in public except in certain circumstances
(1)
A court must conduct proceedings under this Act in public unless the Court makes an order that the whole or any part of the proceedings must be conducted in private.
(2)
A court may make an order under subsection (1)—
(a)
on the application of any party to the proceedings; and
(b)
only if the Court is satisfied that the public interest in having the proceedings conducted in public is outweighed by the interests of any party to the proceedings in having the whole or any part of the proceedings conducted in private.
(3)
If an application is made for an order under subsection (1), the fact that the application had been made, and the contents of the application, must not be made public until the application is determined.
(4)
In this section and sections 14G to 14I,—
Court—
(a)
means any court that has jurisdiction in regard to the matter in question; and
(b)
includes the High Court and the Court of Appeal; but
(c)
does not include an arbitral tribunal
proceedings includes all matters brought before the Court under this Act (for example, an application to enforce an arbitral award).
Section 14F: inserted, on 18 October 2007, by section 6 of the Arbitration Amendment Act 2007 (2007 No 94).
14G
Applicant must state nature of, and reasons for seeking, order to conduct Court proceedings in private
An applicant for an order under section 14F must state in the application—
(a)
whether the applicant is seeking an order for the whole or part of the proceedings to be conducted in private; and
(b)
the applicant's reasons for seeking the order.
Section 14G: inserted, on 18 October 2007, by section 6 of the Arbitration Amendment Act 2007 (2007 No 94).
14H
Matters that Court must consider in determining application for order to conduct Court proceedings in private
In determining an application for an order under section 14F, the Court must consider all of the following matters:
(a)
the open justice principle; and
(b)
the privacy and confidentiality of arbitral proceedings; and
(c)
any other public interest considerations; and
(d)
the terms of any arbitration agreement between the parties to the proceedings; and
(e)
the reasons stated by the applicant under section 14G(b).
Section 14H: inserted, on 18 October 2007, by section 6 of the Arbitration Amendment Act 2007 (2007 No 94).
14I
Effect of order to conduct Court proceedings in private
(1)
If an order is made under section 14F,—
(a)
no person may search, inspect, or copy any file or any documents on a file in any office of the Court relating to the proceedings for which the order was made; and
(b)
the Court must not include in the Court's decision on the proceedings any particulars that could identify the parties to those proceedings.
(2)
An order remains in force for the period specified in the order or until it is sooner revoked by the Court on the further application of any party to the proceedings.
Section 14I: inserted, on 18 October 2007, by section 6 of the Arbitration Amendment Act 2007 (2007 No 94).
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Certificates concerning parties to the Conventions
A certificate purporting to be signed by the Secretary of Foreign Affairs and Trade, or a Deputy Secretary of Foreign Affairs and Trade, that, at the time specified in the certificate, any country had signed and ratified or had denounced, or had taken any other treaty action under, the Protocol on Arbitration Clauses (1923) or the Convention on the Execution of Foreign Arbitral Awards (1927) in respect of the territory specified in the certificate is presumptive evidence of the facts stated.
