ARBITRATION INSIGHT
The Arbitration Amendment Bill 2017
Following its introduction in March of 2017, the Arbitration Amendment Bill has now progressed to the Select Committee phase. The Bill had its first reading on 10 May 2017 with a party vote of 107 Ayes and 12 Noes. Following the receipt of 16 submissions from interested groups and individuals, an Interim Report of the Justice Committee was issued in April 2018.
In short, the purpose of this bill is to amend the Arbitration Act 1996 to ensure arbitration clauses in trust deeds are given effect to extend the presumption of confidentiality in arbitration to a rebuttable presumption of confidentiality in related court proceedings under the Act, to clearly define the grounds for setting aside an arbitral award and bring New Zealand’s approach into line with foreign arbitration legislation, and to confirm the consequence of failing to raise a timely objection to an arbitral tribunal’s jurisdiction.
From the Bill’s Digest, its main provisions are summarised as follows:
Validity of arbitration clauses in trust deeds
The Bill provides that it is lawful for a settlor of a trust to insert an arbitration clause in a deed of trust and such clause will be binding on all trustees, guardians, and any beneficiaries, or anyone claiming to be a trustee, guardian, or beneficiary, under the trust in relation to matters arising under or in relation to the trust as if it was an agreement under the Arbitration Act 1996 (Clause 4, inserting New Section 10A(1) into the Arbitration Act 1996).
Powers of arbitral tribunal under a trust deed arbitration clause
The Bill provides that any tribunal appointed pursuant to an arbitration clause in a deed of trust has the same power of the High Court to appoint representatives to conduct litigation on the part of any minor, unborn, or unascertained beneficiary or class of beneficiaries and:
- the approval of the tribunal is required in relation to a settlement affecting the person or class represented;
- the tribunal may approve a settlement where it is satisfied that the settlement is for the benefit of the person or class represented;
- any award given in the trust arbitration will be binding on the person or class represented; and
- the costs of representation may be paid from property held on the trust subject to the arbitration and, for the avoidance of doubt, an arbitrator may order the payment of those costs by another party in the proceeding (Clause 4, inserting New Section 10A(2) and (3) into the Arbitration Act 1996).
Restrictions on reporting of proceedings heard otherwise than in open court
The Bill provides that a Court must, on the application of any party, make a direction as to what information, if any, relating to the proceedings may be published.
A Court must make directions permitting information to be published in law reports and professional publications if:
- all parties agree that the information may be published and the Court is satisfied that the information if published would not reveal any matter (including the identity of any party) that any party reasonably wishes to remain confidential; or
- the Court considers that such a judgment is of major legal interest.
The Bill further provides that if any party reasonably wishes to conceal any matter in those reports (including the fact that the party was such a party), the court must, on the application of the party, make a direction as to the action to be taken to conceal that matter in those reports, and may direct that the report may not be published until after the end of a period (being not more than 10 years) that the court may direct (Clause 5, substituting Section 14F of the Act).
Changes made to Schedule 1 (“Rules applying to arbitration generally”)
The Bill amends Schedule 1 to provide that:
- the consequence of failing to raise an objection to the High Court in a timely manner is that the right to later challenge jurisdiction is waived;
- arbitration agreements may not be being set side or held unenforceable by reason of their procedural provisions conflicting with the Act;
To read the Bill, see:
http://www.legislation.govt.nz/bill/member/2017/0245/latest/DLM7153602.html?src=qs
To access the latest update on the Bill’s progress, see:
Upcoming AMINZ Conference 2018 in Wellington (30 August – 1 September 2018) – “Making it Work”
Each year AMINZ holds the preeminent dispute resolution conference for disputes resolution professionals. Like most years, there will be considerable involvement from Bankside Chambers (whether as presenters, debaters, chairs or delegates).
It’s going to be a little different this year, with a new innovative format and some invigorating add-ons. Some things will be the same – concurrent streams for determinative and consensual processes, an unparalleled opportunity to learn, network and socialise and of course, excellence in presentations.
Just some of what will be on offer:
- Sector meeting for those practicing in the rural sector, family disputes resolution and construction adjudication
- The launch of the Young AMINZ Arbitration Group
- Newbies Event for anyone new to conference. Sponsored by Kensington Swan
- Super-mediator Lee Jay Berman on how to grow your practice
- A commercial mediation fish-bowl
- An Oxford Union style debate with the topic – I owe my obligation to my client, not the process.
- A movie screening of the Quite Triumph: How arbitration Changed the World.
- 16 discussion groups on hot topics
- Social events aplenty including a Wellington food and drink journey
- An add-on seminar with Lee Jay Berman – mediating through different lenses: seeing new things in the same old rooms
For more information about the AMINZ Conference, see:
To access the conference brochure, see:
Current issue in arbitration – Acting judges sitting as arbitrators?
In some jurisdictions, like Russia, acting judges have been prohibited from sitting as arbitrators since the inception of arbitration in the mid-19th century. In other jurisdictions, like Sweden, there is no such restriction. Indeed, Swedish judges are permitted to sit as arbitrators and keep fees from their appointments provided that they do not accept extra-judicial arbitral appointments which may threaten their impartiality. In England, acting judges can sit as arbitrators provided they have first obtained permission from the Lord Chief Justice and that they are judges of the Commercial Court or Technology and Construction Court. Where they do sit as arbitrators, any fees are payable to the state. There may be the possibility of a wider power in England which would allow all High Court judges to sit as arbitrators. In other jurisdictions the position is far from clear.
Even in those jurisdictions where judges are allowed to sit as arbitrators, the question remains as to whether acting judges should sit as arbitrators. On the one hand, judges are well versed in the law and can be trusted to deliver a clear and reasoned award. However, others take the view that acting judges simply should not accept arbitral appointments on the basis that it is inconsistent with their public position as a judge.
Several questions arise:
- Should a sitting judge accept fees when sitting as an arbitrator?
- Will a sitting judge have sufficient time to devote to the arbitration?
- Is there a danger that a sitting judge will exert too much influence over other members of the tribunal?
The former Lord Chief Justice of England and Wales, Lord Thomas, argued that there should be greater scope for judges to sit as arbitrators and to be paid in that role. In his view, this would give them greater exposure to a range of disputes on points of key commercial importance, build their expertise and encourage innovation to the court system. He hopes that “cross fertilisation” and exposure to different ways of working will be a “source of innovation”.
In a speech at the Commercial Litigation and Arbitration Forum, Stephen Jagusch, head of international arbitration at Quinn Emanuel Urquhart & Sullivan argued that they provide an antidote to “weak career arbitrators” who may have a tendency to accede to too many requests for parties and appear to bend over backwards to ensure nobody feels unfairly treated. In his view, judge arbitrators would be more prepared to emulate a more robust approach and intolerance of delay or spiralling costs.
Research in 2017 from the International Institute for Sustainable Development identified 90 investor-state dispute settlement cases in which sitting ICJ judges had either worked – or were currently working – as arbitrators. The concern expressed by Nathalie Bernasconi-Osterwalder (Director of the Institute’s Economic Law and Policy Program) was that the ICJ’s reputation could be damaged. She expressed the view that “[t]he ICJ is the world’s most important and respected court charged with the sound administration of international justice. Its representatives need to be held to the highest standards of independence”.
A recent event in London convened by Berwin Leighton Paisner, the ICC International Court of Arbitration and 4 New Square considered the question. They highlighted the benefits of gravitas, expertise and experience of quick legal decision-making that active judges may bring to an arbitral tribunal, as well as the risks that their judicial caseload may affect their impartiality, or they may have sway over the rest of the tribunal because of their position on the bench.
For more on this issue, see:
https://www.iisd.org/sites/default/files/publications/icj-judges-isds-commentary.pdf
https://blogs.lexisnexis.co.uk/dr/should-acting-judges-sit-as-arbitrators/
Other current issues in arbitration
To stay in the know as to the latest topics in arbitration, see:
The latest topics are as follows:
- Cross-border partnerships, and collaboration
- Increasing access to International Arbitration
- Educating a new generation of practitioners
- Arbitrator selection process
- The role of technology
- Diversity
- Innovation
- Belt & road disputes
- A voice for regional players
- Emergency of regional arbitration hubs
By Michael Greenop
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