Russell McVeagh
5 Contributions by Russell McVeagh Experts
PRACTICE NOTES
This Practice Note ought to be read alongside Practice Note: Arbitration in New Zealand—recognition and enforcement of arbitral awards.
The New Zealand Arbitration Act 1996
The Arbitration Act 1996 (the Act) prescribes the framework governing domestic and international arbitrations in New Zealand. Any references in this Practice Note to sections, Sch 1 and its articles, and Sch 2 and its clauses, are references to the Act.
The Act’s aims are to foster the use of arbitration at home and abroad, to secure coherence across international arbitral regimes and between those regimes and New Zealand’s domestic scheme, to uphold party autonomy in resolving disputes by arbitration, and to confine the oversight of New Zealand courts when asked to review or set aside arbitral outcomes.
To meet these objectives, Schedule 1 establishes a unified set of rules for both international and domestic arbitrations. This scheme is derived from the
Arbitration
PRACTICE NOTES
Interim remedies in support of arbitration—the legislative regime
Arbitration in New Zealand is regulated by the Arbitration Act 1996 (the Act). The principal body of the Act sets out general provisions and rules applicable. Schedule 1 contains an adapted form of the United Nations Commission on International Trade Law (UNCITRAL) Model Law (the Model Law), and Schedule 2 sets out special rules that generally apply only to domestic arbitrations. In 2007, New Zealand was the first country in the world to implement amendments to the original Model Law put forward by the UNCITRAL 2000 working group, delivering a more comprehensive code for interim measures in support of arbitration. This New Zealand regime is located, in particular, in articles 9 and 17–17M of Schedule 1 to the Act:
article 9 of the Act provides for court-ordered interim measures in support of
Arbitration
PRACTICE NOTES
A central element in giving effect to an agreement to arbitrate is safeguarding the jurisdiction of the arbitral tribunal seized of the dispute. In New Zealand, a range of remedies exists to protect the tribunal’s exclusive authority from both domestic and overseas court proceedings. In addition, parties have avenues to address situations where the arbitral tribunal has been improperly seized of jurisdiction...
Accordingly, this Practice Note considers the following issues:
applying for a stay of court proceedings in favour of arbitration
applying for injunctions in the New Zealand courts to restrain foreign court proceedings brought in breach of an arbitration agreement (the ‘anti-suit’ injunction)
challenging the jurisdiction of an arbitral tribunal in New Zealand
Both international and domestic arbitration in New Zealand is governed by the Arbitration Act 1996. The Arbitration Act largely implements the UNCITRAL Model Law as Schedule 1 to the Act.
Arbitration
PRACTICE NOTES
This Practice Note surveys New Zealand’s law on state immunity in general terms before moving to the two scenarios noted above. For an overview of arbitration in New Zealand, see Arbitration in New Zealand—an introduction. For approaches to challenging the jurisdiction of arbitration awards more broadly, see Practice Note: Challenging jurisdiction and anti-suit provisions in New Zealand.
State immunity can be pertinent to arbitration in two ways:
a challenge to the arbitral tribunal’s jurisdiction grounded in state immunity, or
a challenge to enforcement of the arbitration award relying on state immunity
The application of state immunity to investment arbitration awards under the Arbitration (International Investment Disputes) Act 1979 is addressed separately below.
Note: New Zealand judgments below are not reported by LexisNexis®.
State immunity in New Zealand: generally
A state named as a defendant may dispute the court’s jurisdiction by invoking state immunity. The doctrine rests on
Arbitration
PRACTICE NOTES
Recognition and enforcement of both New Zealand and foreign arbitral awards in New Zealand
In New Zealand, the recognition and enforcement of domestic and overseas arbitral awards is governed by the Arbitration Act 1996 (the Act), Sch 1, arts 35 and 36. Those provisions effectively incorporate the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (the New York Convention) into New Zealand law. Under this framework, a New Zealand court must treat an arbitral award as binding, regardless of the country in which it was made. As a result, awards issued abroad are recognised and can be enforced in New Zealand. Recognition of a foreign award follows automatically from art 35 and does not require the award to be entered as a judgment of the New Zealand court. Therefore, where a party seeks to defend fresh proceedings by relying on a cause of
Arbitration
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