Bankside Arbitrators Royden Hindle and Dr Anna Kirk, along with Diana Qiu of Thorndon Chambers, and in collaboration the New Zealand Dispute Resolution Centre, have released The Second Aotearoa New Zealand Arbitration Survey, three years following their definitive Inaugural Survey.
Royden shares: “We are proud to present the results of our second survey to the dispute resolution community. The survey builds on the foundation of the Inaugural Aotearoa New Zealand Arbitration Survey in August 2022, and provides a richer and more complete picture of current arbitration practice in Aotearoa.”
Excerpt from The Inaugural Aotearoa New Zealand Arbitration Survey’s Overview:
“The Second Survey covers the period from 1 January 2021 to 31 December 2022. Together with the Inaugural Aotearoa New Zealand Arbitration Survey (2022) (“Inaugural Survey”), we now have access to a significant amount of data on arbitration in New Zealand across four consecutive years. This data provides insights into arbitral practice and procedure in New Zealand, allowing us to evaluate arbitration’s place in the dispute resolution landscape.
There was a noticeable drop in the number of arbitrators responding to the Second Survey and the number of arbitrations reported. It is not known if this represents a drop in the use of arbitration or simply survey fatigue. Nonetheless, despite the lower response rate, there were still 159 arbitral appointments reported over the two-year period by 35 arbitrators. Given we know that this is the minimum number of arbitrations taking place, we are confident that arbitration is contributing significantly to dispute resolution in New Zealand.
One of the most interesting findings in the Second Survey is that the average length of time from appointment of an arbitrator to issuing a substantive award was 10.65 months, with a median time of 7 months. The average length of an arbitration is very similar to that found in the Inaugural Survey (10.85 months) We obtained more information in the Second Survey about the length of time arbitrations were taking, as we asked about all awards issued during the two-year survey period and not just about awards issued for appointments that took place during the survey period.
It is gratifying to see that the much wider Second Survey produced results similar to the smaller data set in the Inaugural Survey. It is also gratifying to see that arbitration offers an efficient and quick form of dispute resolution, when compared with litigation. The delays in the High Court post-Covid are widely reported, with the average time from a case being “ready for hearing” to hearing date currently sitting at 573 days. From a commercial perspective, unless delay is the aim, arbitration is likely to offer a far more effective method of dispute resolution. Moreover, these results demonstrate that arbitration could be a key pillar in the solution to court delays, by taking pressure off the over-burdened court system so that time can be freed up for those cases that cannot or should not be arbitrated.
On a less upbeat note, it is disappointing to see little progress on increasing the diversity of arbitrators, particularly in relation to ethnic diversity. Unlike the Inaugural Survey, all respondents identified as NZ European/Pākehā in the Second Survey, suggesting a reduction in diversity. Gender diversity remained similar, with clear evidence that institutions were responsible for most (but not all) appointments of female arbitrators.
Finally, it was interesting to see that lease arbitrations dominated the subject matter of arbitrated disputes, accounting for 52% of the arbitrations. This was a change compared to the Inaugural Survey which showed a more even spread between different subject matters. It was also interesting to see a rise in the number of arbitrations conducted under institutional rules. While most arbitrations are ad hoc (governed only by the Arbitration Act 1996), there was a significant increase in the use of rules, particularly those offered by NZDRC.”
Further reading
A copy of The Inaugural Aotearoa New Zealand Arbitration Survey can be downloaded from the NZDRC website.
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