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FAQs about Domestic Arbitration in New Zealand

How does commercial arbitration work in New Zealand?

A: In New Zealand, commercial arbitration is a private dispute resolution process where the parties agree to have their dispute decided by an independent arbitrator instead of going to court. The arbitrator’s decision (the award) is final and binding, and can be enforced through the courts if necessary[1]. Arbitration in NZ is governed by the Arbitration Act 1996 (as amended), which provides a legal framework for the proceedings[2]. Typically, the process begins with an arbitration clause in a contract or a submission agreement after a dispute arises. The parties then appoint an arbitrator (or a panel of arbitrators) who will hear the evidence and arguments, and ultimately issue a written award. Proceedings are generally flexible – parties can often set some procedural rules by agreement – and are conducted in private. Overall, commercial arbitration in NZ offers a confidential, party-driven procedure resulting in a binding outcome, much like a court judgment but usually with more flexibility in process and scheduling.

What is the Arbitration Act 1996 and how does it govern arbitration (including the 2007 amendments)?

A: The Arbitration Act 1996 is the principal legislation governing both domestic and international arbitrations seated in New Zealand[3]. When it came into force on 1 July 1997, it fundamentally modernized NZ’s arbitration law by adopting the UNCITRAL Model Law on International Commercial Arbitration[4]. This means the Act emphasizes party autonomy, limited court intervention, and enhanced powers for arbitrators to manage proceedings[4]. The Act is divided into two key schedules: Schedule 1 (mandatory), which essentially is the Model Law for all NZ-seated arbitrations, and Schedule 2 (optional), which adds certain provisions (like the possibility of appeals on legal questions) that automatically apply to domestic arbitrations unless the parties opt out (and apply to international arbitrations only if parties opt in)[5].

In 2007, the Act was amended to strengthen New Zealand’s pro-arbitration framework. Notably, New Zealand became the first country to adopt the UNCITRAL 2006 revisions on interim measures and preliminary orders, giving arbitrators clear authority to issue urgent relief[6]. The 2007 amendments also introduced a much more robust confidentiality regime (replacing the original 1996 Act’s skeletal provisions) and tightened the rules on appeals – preventing attempts to disguise factual disputes as legal questions on appeal[7]. In practice, the Arbitration Act 1996 (as amended in 2007) ensures that arbitration in NZ is aligned with international best practices, while also incorporating unique features (like statutory confidentiality and tailored appeal options) suitable for New Zealand’s legal environment.

What is AMINZ and what are its arbitration rules?

A: AMINZ stands for the Arbitrators’ and Mediators’ Institute of New Zealand. It is the leading professional body for arbitration and mediation in NZ[8]. AMINZ serves multiple roles: it provides training and accreditation for arbitrators, promotes high standards (its panel arbitrators must follow a Code of Ethics and ongoing professional development), and it actively works to improve dispute resolution law and practice in NZ[9]. Importantly, AMINZ is also formally recognized as the default appointing authority under the Arbitration Act – meaning that if parties to an arbitration cannot agree on an arbitrator, AMINZ can step in to appoint one (a role previously held by the High Court)[10][11].

In addition, AMINZ has developed its own set of Arbitration Rules (most recently updated in 2022) which parties can adopt to govern their arbitration. These rules are designed for both domestic and international cases, striking a balance between clarity and flexibility[12]. The AMINZ Arbitration Rules reflect modern best practices – for example, they provide streamlined procedures to commence an arbitration, options for appointing a tribunal (including emergency arbitrators for urgent interim relief), and even an expedited process for lower-value or less complex disputes[13]. The rules also allow, if needed, for a Registrar to supervise administrative aspects and permit the use of a tribunal secretary in larger cases[14]. By choosing AMINZ rules, companies get a framework tailored to New Zealand law but consistent with international standards[12]. In summary, AMINZ is both a hub of arbitration expertise and an institution that offers rules and services (like arbitrator appointment and an appeals tribunal) to support effective commercial arbitration in New Zealand.

What are the key features and advantages of choosing arbitration in New Zealand?

A: New Zealand-seated arbitration offers several features that make it attractive for corporate disputes:

  • Confidentiality and Privacy: Unlike court litigation (which is public), arbitrations in NZ are typically confidential. In fact, NZ law imposes a statutory duty of confidentiality on the parties – by default, no party may disclose information about the proceedings or the award, unless they agree otherwise[15]. This allows businesses to resolve disputes discreetly, protecting sensitive commercial information and reputations.
  • Expert Decision-Makers: Parties can choose arbitrators with specific expertise relevant to their industry or the dispute. For example, in a complex construction contract dispute, the parties might select an arbitrator with an engineering or construction law background. This expertise can lead to more informed and commercially sensible decisions[16].
  • Flexibility and Party Autonomy: The arbitration process is flexible – parties have significant say in designing procedures that suit their needs. They can agree on timelines, hearing formats, the applicable rules, and other procedural matters[17]. This ability to tailor the process often makes arbitration more efficient and better suited to complex commercial matters than a one-size-fits-all court process.
  • Speed and Efficiency: Arbitration can often be faster than litigating in court. There is no need to wait for a court date in a busy court calendar; the timetable is set by the parties and arbitrator. Many arbitrations (especially straightforward cases) are resolved in a matter of months, whereas complex commercial disputes might typically conclude within 12 to 24 months[18] – still often quicker than equivalent court cases. A faster resolution helps businesses move on sooner[19].
  • Finality with Limited Appeals: Arbitral awards are final and binding, with very limited grounds for challenge. This finality means there is generally no prolonged appeals process as in litigation, which provides certainty. (We discuss appeal options in NZ in a later FAQ, but in general, court intervention is minimal – New Zealand courts are known for a pro-arbitration stance and reluctance to interfere with awards[20].)
  • Ease of Enforcement (Domestic and International): An award from an NZ-seated arbitration is easy to enforce. Domestically, an award can be entered as a judgment in court, giving it the same effect as a court order[21]. Internationally, New Zealand awards are enforceable around the world under the New York Convention 1958, to which NZ is a party[22]. This means if your counterparty has assets overseas, you can generally take your NZ arbitral award to over 160 countries and have it recognized and enforced like a local court judgment – a major advantage over trying to enforce a New Zealand court judgment abroad.

In short, NZ-seated arbitration combines privacy, expertise, and flexibility with the reassurance of a supportive legal framework and global enforceability.

How does arbitration compare to court litigation in New Zealand (and when should we choose one over the other)?

A: Choosing between arbitration and litigation in NZ depends on the priorities and circumstances of the dispute:

  • Confidentiality: Arbitration is private and usually confidential, whereas court litigation is public. For corporates concerned about publicity or protecting trade secrets, arbitration is often preferable to keep the dispute out of the public eye. This is a key reason many businesses opt for arbitration – it “allows your business to keep sensitive information and reputational issues out of the public eye.”[23].
  • Expertise and Control: In arbitration, parties can select an arbitrator with relevant expertise and even shape certain procedures. In court, you have a randomly assigned judge and must follow the court’s processes. If a dispute is highly technical or industry-specific, arbitration allows you to have a decision-maker who truly understands the subject matter. You also have more control over scheduling and procedure (for example, choosing to have a documents-only process or a limited discovery phase in arbitration)[17].
  • Speed: Arbitration can often be faster. Courts in NZ generally operate efficiently, but complex cases can still take years if there are appeals. Arbitration lets parties set an aggressive timetable if they wish, and there is no automatic right of appeal on the merits to slow things down. Many NZ arbitrations can be concluded within a year or so (depending on complexity), which might be quicker than a full trial and appeal in the court system[18].
  • Costs: This can cut both ways. Arbitration avoids some court expenses and, if faster, can mean lower total legal fees. However, arbitration has upfront costs that litigation doesn’t – notably, arbitrators’ fees and any administering institution fees, plus hiring a venue if an in-person hearing is needed[24]. In court, the judge is “free” (paid by the state). Thus, for smaller disputes, the cost of an arbitrator might outweigh arbitration’s benefits. For larger disputes, arbitration’s efficiency and finality can make it cost-effective overall, even if upfront costs are higher[25]. Companies should weigh the value of confidentiality and expertise against the additional arbitrator fees.
  • Appeal and Finality: Litigation allows appeals on law or fact (through the High Court, Court of Appeal, Supreme Court), which can be a safeguard if a first decision seems wrong – but appeals add time and expense and air the dispute publicly again. Arbitration awards are generally final with very limited appeal/review rights. This finality can be an advantage if you want disputes resolved and closed quickly, but it also means you have less recourse if you disagree with the outcome. (However, NZ does permit a narrowly scoped appeal on legal questions in some arbitrations – see Appeal and review rights below – and parties can even build in a private appeal option via AMINZ if they choose[26].)

In summary, arbitration is often chosen in NZ when confidentiality, expert decision-making, and international enforceability are important, or when parties want a tailored, potentially faster process and can bear the arbitrator’s fees. Litigation may be preferred when parties want the possibility of appeal on all issues, need coercive court powers (e.g. to join third parties or compel evidence from non-parties), or for smaller disputes where court is more cost-proportionate. Many NZ contracts include arbitration especially for large or cross-border deals, but each situation should be assessed on its own merits. Corporate legal teams will often include a well-drafted arbitration clause for significant commercial contracts, while relying on courts for simpler or domestic matters.

Are arbitration proceedings confidential in New Zealand?

A: Yes. New Zealand law provides for a strong degree of confidentiality in arbitration. In fact, NZ is somewhat unique in that its arbitration statute explicitly imposes confidentiality obligations by default. Section 14 of the Arbitration Act 1996 (as strengthened by the 2007 amendments) essentially makes confidentiality an implied term of every arbitration agreement[27][15]. Unless the parties agree otherwise, neither the parties nor the tribunal can publish, disclose, or communicate any information relating to the arbitral proceedings or the award[15]. This covers pleadings, evidence, hearing transcripts, and the arbitral award itself.

The confidentiality rule in NZ arbitration is subject only to some narrow exceptions – for example, parties might be allowed to disclose information to enforce or challenge an award in court (which may itself be done in a sealed court file in certain cases), or to a professional adviser, or if required by law, etc. The 2007 amendments to the Act provided a detailed code for such exceptions, ensuring that the duty of confidentiality is balanced against the interests of justice[28]. In practical terms, this means NZ-seated arbitration is a very private process. Corporate clients appreciate that they can resolve disputes without generating news headlines or disclosing commercially sensitive data. Do note that if parties prefer a more open process, they are free to agree to waive confidentiality, but this is rare in commercial settings. Generally, confidentiality is seen as a key advantage of New Zealand arbitration, and the law firmly supports it[15].

Can arbitral awards be enforced in New Zealand and overseas?

A: Enforcement in New Zealand: Arbitral awards made in New Zealand are readily enforceable just like a court judgment. Under the Arbitration Act, an award can, by application, be entered as a judgment in the High Court or District Court (depending on the amount)[21]. If both parties agree, they can jointly request the court to convert the award into a judgment, and the registrar will do so as a matter of course[29]. If the losing party does not consent, the winning party can apply to the court with the award and the arbitration agreement – in most cases, the court must grant enforcement unless a narrow ground for refusal is proven[30][31]. The grounds to refuse enforcement (or to “set aside” an award) are very limited and mirror international norms (e.g. a party lacked capacity, invalid arbitration agreement, serious procedural unfairness, the tribunal exceeded its mandate, or the award is contrary to public policy)[32]. These are hard to establish, and New Zealand courts generally take a pro-enforcement approach – they will not revisit the merits of the dispute. In short, if you win in a NZ arbitration, you can almost always get a court judgment to the same effect, and then use normal enforcement measures (such as seizing assets, if needed) against the losing party[33].

Enforcement internationally: One of the biggest advantages of arbitration is the ease of enforcing awards across borders. New Zealand is a party to the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards[22]. This convention (with over 160 member countries) requires courts in other member states to recognize and enforce NZ arbitral awards, with only a few defenses similar to those mentioned above. In practice, an award from a New Zealand-seated arbitration can be taken to (for example) Australia, the US, Europe, Asia, etc., and enforced there with minimal fuss – far easier than enforcing a NZ court judgment abroad. Likewise, foreign arbitral awards (from other New York Convention countries) are enforceable in NZ through the Act. New Zealand has also acceded to other related treaties (like the Geneva Convention and the Washington Convention for investment disputes)[22], but the New York Convention is the primary regime for commercial awards.

For completeness, if an arbitration award is not honored voluntarily, the typical enforcement process is to apply to the relevant court (NZ or abroad) to have the award confirmed as a court judgment. Given NZ’s adherence to the Convention and the Arbitration Act’s provisions, businesses can be confident that a valid arbitral award will hold weight and can be turned into real relief (like payment or injunctions) wherever the losing party’s assets are located.

How are arbitrators appointed in a New Zealand arbitration (especially under AMINZ rules)?

A: Appointment by Agreement: In New Zealand, the starting point – as with most places – is that the parties are free to agree on an arbitrator appointment method. Often the arbitration clause will specify how many arbitrators (typically one or three) and how they are chosen. For example, in a sole-arbitrator scenario, the parties might agree on a single neutral arbitrator together; in a three-arbitrator panel, each side might choose one, and those two arbitrators choose the third (the chair). If the contract names a particular appointing authority or institution (like AMINZ or another arbitral institution), that entity may play a role in confirming or selecting arbitrators per the agreed rules.

Default mechanism under the Act: If the parties’ agreed method fails – say one party refuses to cooperate, or the arbitrators chosen cannot agree on a chair – the Arbitration Act provides a backup. Historically, the High Court would appoint an arbitrator upon a party’s application in such cases. However, a 2016 amendment to the Act changed this: now, the default appointing authority in New Zealand is AMINZ (designated by the Minister of Justice) instead of the High Court[10]. In practice, this means if you can’t agree on an arbitrator, you can request AMINZ to make the appointment for you. AMINZ has an Appointments Panel and a formal process to match disputes with a suitable arbitrator[11]. This system is designed to save time and cost – avoiding court – and leverage AMINZ’s expertise in selecting qualified arbitrators[34]. (If for some reason AMINZ could not act or the clause names a different authority, the High Court can still step in, but usually AMINZ handles it.)

Appointment under AMINZ Arbitration Rules: If parties are using the AMINZ Arbitration Rules, those rules will detail the appointment process. Typically, a party will start the arbitration by sending a Notice of Arbitration to the other side and to AMINZ. If an arbitrator isn’t pre-agreed, AMINZ can facilitate the appointment. The AMINZ rules and Appointment Policy ensure that an impartial and qualified arbitrator is appointed. AMINZ maintains a Panel of experienced arbitrators, but can appoint non-panel arbitrators as well if appropriate. Parties can also jointly nominate someone and simply have AMINZ confirm the appointment.

Key takeaway: In New Zealand, you have a lot of autonomy to pick an arbitrator who fits your dispute, and there’s a safety net through AMINZ’s appointing authority role if you cannot agree. From a corporate perspective, this is reassuring – a stalemate over appointing the arbitrator cannot derail the arbitration, and the selection will be handled by a reputable, neutral body (AMINZ) rather than immediate resort to court. Always check your arbitration clause: if it names an appointing procedure or institution, follow that. If it’s silent, the Act’s default (AMINZ assistance) is there to help.

Can you appeal or challenge an arbitral award in New Zealand?

A: Under New Zealand law, arbitral awards are intended to be final and binding, and the grounds for court intervention are very limited. However, there are a couple of avenues for reviewing an award:

  • Appeals on a Question of Law: New Zealand’s Arbitration Act provides a special (optional) mechanism in Schedule 2, clause 5 that allows a party to appeal an award to the High Court on a question of law only. This is not automatic in every case – for an appeal to proceed, either all parties must agree to allow it, or the appellant must obtain leave (permission) from the High Court[35]. Leave will only be granted on strict grounds, such as the court being satisfied that the question of law could substantially affect the rights of one or more parties[36][35]. Essentially, trivial or academic points won’t be heard – the issue must be important and the arbitrator’s decision on that legal point arguably incorrect. It’s worth noting that Schedule 2 (and thus this appeal right) automatically applies to domestic arbitrations unless the parties contract out of it, but does not apply to international arbitrations unless the parties opt in[37]. In practice, appeals on law are relatively rare; New Zealand courts are generally reluctant to interfere with arbitral awards and will defer to the arbitrator on factual findings[20]. The 2007 amendments even aimed to prevent parties from trying to reframe factual disagreements as “legal questions” to sneak into an appeal[28].
  • Challenge by Setting Aside: Aside from appeals on law, a party can challenge an award by applying to set it aside (or resist its enforcement) on very narrow grounds, as provided in Article 34 of Schedule 1 (these mirror the New York Convention defenses). These grounds include things like a party was under some incapacity, the arbitration agreement was invalid, the tribunal acted outside its jurisdiction, there was a serious procedural failure (e.g. no proper notice or opportunity to present one’s case), or the award is against public policy[32]. A set-aside application is not a review of the merits at all – it’s only about fundamental fairness and jurisdiction. New Zealand courts have been quite strict in upholding awards unless a clear violation of those limited grounds is shown.
  • No Appeal on Facts or Merits: There is no right to appeal an arbitral award on a factual finding or because one party thinks the arbitrator got the evidence wrong. The arbitrator is the final judge of facts. This is by design – one attraction of arbitration is avoiding prolonged litigation, and that means accepting the arbitrator’s decision as final in almost all respects.
  • AMINZ Arbitration Appeals Tribunal (Private Appeals): Uniquely, New Zealand (through AMINZ) also offers a private appeals mechanism. If parties wish, they can agree in their arbitration clause to exclude the usual court appeal route and instead have any appeal on legal questions heard by an AMINZ Arbitration Appeals Tribunal[26]. This is essentially a second-tier arbitration panel of senior practitioners who can review the first award quickly and confidentially. The idea is to provide an appeal option without going to the public courts. To use it, the contract must explicitly allow for it (AMINZ even provides model wording: e.g. agreeing to exclude Schedule 2, cl 5 and refer any legal question appeal to the AMINZ tribunal)[38]. If such a clause isn’t in place, you generally cannot add AMINZ appeals after the fact – it has to be pre-agreed. This option might appeal to parties who want an extra safeguard against legal error but still value privacy (since High Court appeals become part of the public record, whereas an AMINZ appeals arbitration remains confidential).

In summary, appeals or challenges are very limited in NZ arbitration. For most purposes, an arbitral award is final. You can get a court to overturn or modify it only in exceptional circumstances. Parties can, by prior agreement, allow a bit more review (via a court or AMINZ appeal on law), but many choose not to, in order to preserve arbitration’s finality. Corporate legal teams should consciously decide whether to opt in or out of the Schedule 2 appeal provision when drafting contracts. Many domestic contracts opt out to prevent any appeals and ensure disputes end at arbitration, while others leave it in as a safety net for major legal issues. Either way, New Zealand’s arbitration regime ensures that frivolous or tactical challenges to awards are not entertained – enforcement of awards is the norm, not the exception[20].

What are the typical costs and timelines in a New Zealand arbitration?

A: Timeline: The duration of an arbitration in NZ can vary widely based on the complexity of the case and the parties’ approach, but it is often faster than court litigation. A straightforward commercial dispute (with cooperative parties and maybe a single issue) might be resolved in just a few months[18]. Complex cases with multiple issues, expert witnesses, and lengthy hearings will take longer – perhaps around 12 to 24 months from commencement to final award is typical for a substantial dispute[18]. This range is corroborated by surveys and practitioner experience. Notably, arbitration timelines are somewhat within the parties’ control: by agreeing to procedural efficiencies (like limited discovery, tight timetables for submissions, or even using documents-only hearings for smaller cases), parties can significantly shorten the process. On the other hand, if parties engage in extensive discovery and numerous interlocutory applications (much like a court case), an arbitration can also drag on. However, arbitrators are tasked with avoiding unnecessary delay, and the Act encourages a focus on a fair but efficient resolution. Many arbitrators will schedule the hearing and even set a target date for the final award early on. In New Zealand, it’s not uncommon to have an arbitral award delivered within a year for medium-complexity cases – a timeline that might be hard to achieve in the courts if appeals are involved. Some arbitration rules in NZ (e.g. AMINZ or NZDRC expedited rules) even provide for fast-track procedures (e.g. 90 working days or similar for smaller claims)[39], allowing a quick result when time is of the essence.

Costs: The costs of arbitration include several elements: arbitrators’ fees, any institution’s administrative fees (if using an administering body like AMINZ or NZIAC), venue and hearing costs, and of course each side’s legal fees. In NZ, many arbitrators charge on an hourly or daily rate basis for their work, similar to senior lawyers. For a simple one-day arbitration with minimal procedure, the arbitrator’s fee could be a few thousand dollars; for a complex multi-week hearing, arbitrator fees can be significant (tens of thousands or more, depending on the case). If a panel of three arbitrators is used, total arbitrator fees will roughly triple (since you pay each arbitrator). In addition, if an institution is administering the case, there may be a filing fee and a schedule of admin fees (often proportionate to the amount in dispute). Venue costs (if an in-person hearing is held in, say, a hotel conference room or dedicated hearing centre) and ancillary costs (transcription, interpreters if needed, etc.) might also arise. These arbitration-specific costs are the reason arbitration can have higher upfront costs than litigation[24] (where you don’t pay the judge or courtroom).

On the other hand, arbitration can save money through a more efficient process. For example, procedures are streamlined – there is typically no months-long waiting for a trial date or formalities that cause delay. The ability to limit discovery or use focused expert evidence can reduce legal bills. Also, since arbitral awards are usually final (no appeal), the parties avoid the costs of appellate litigation that often follow a court judgment. A recent NZ commentary notes that while arbitration may have higher upfront costs, the overall process and finality can “result in lower legal fees than litigation” in the long run[25] – though this will depend on the case specifics.

Another aspect is cost recovery: arbitrators in NZ (and the AMINZ Rules) generally have the power to award costs (meaning they can order the losing party to reimburse the winning party for a reasonable share of legal costs and the arbitrator’s fees). This is similar to the “loser pays” principle in NZ courts and can deter frivolous claims or defenses. The AMINZ Rules for Awarding Costs provide guidance to arbitrators in exercising this discretion[40]. So, if you win an arbitration, you can usually ask the arbitrator to award you costs, including the arbitrator’s fees you paid, so that the loser ultimately bears those expenses (in whole or part, at the arbitrator’s discretion).

Bottom line: A typical mid-sized commercial arbitration in NZ might cost in total (including both parties’ legal fees, arbitrator fees, etc.) an amount comparable to a High Court proceeding of similar value – sometimes less, sometimes more, depending on choices made. And it might conclude in perhaps 9 to 18 months, versus maybe 2+ years in court (if appeals occur). Each case can differ, but corporate counsel should budget not only for their own lawyer’s time but also for arbitrator and possible venue fees when choosing arbitration. Importantly, because of confidentiality and finality, many businesses view those costs as worthwhile for the benefits gained.

Can arbitrations be conducted online or electronically in New Zealand (e.g. virtual hearings and e-filing)?

A: Yes. New Zealand’s arbitration community has readily embraced technology, and there is no legal barrier to conducting arbitrations online. Even before 2020, it was common to handle a lot of arbitration procedure via email and teleconference. With the COVID-19 pandemic accelerating the shift, virtual hearings have become routine when needed. Most arbitral rules applicable in NZ explicitly allow remote participation. For example, the rules of institutions like the NZDRC and the Resolution Institute empower an arbitral tribunal to hold conferences or hearings by telephone or video conference[41][42]. Similarly, an arbitrator can direct that witnesses be examined by videoconference rather than in-person[43]. These provisions make it clear that, provided fairness is maintained, an arbitration can proceed without everyone in the same room.

In practice, many NZ arbitrators have conducted hearings via platforms like Zoom or Microsoft Teams, especially when participants are in different cities or countries, or during pandemic restrictions. Documents are almost always exchanged electronically (PDF filings, shared online repositories for exhibits, etc.) – in fact, under the AMINZ Rules, certain applications are required to be made electronically to AMINZ[44]. Parties can sign witness statements or pleadings electronically and submit them by email. Some arbitrations use dedicated file-sharing portals or case management systems (particularly if administered by an institution), but even ad-hoc arbitrations often run on emails and cloud storage for simplicity.

New Zealand’s courts themselves moved to remote hearings as needed during lockdowns, and arbitration followed suit easily given its flexibility. One thing to note: if one party strongly insists on an in-person hearing, tribunals will consider whether going fully virtual could prejudice anyone’s ability to present their case. In NZ so far, there hasn’t been reported litigation over a tribunal forcing a virtual hearing without consent[45] – generally parties have cooperated on this. The assumption is that arbitrators have discretion to manage the hearing format, and most parties appreciate the convenience and cost savings of avoiding travel.

E-filing and electronic evidence: As mentioned, practically everything in an NZ arbitration can be filed electronically. There’s no centralized “e-court” system for arbitration (since arbitrations are private), but arbitrators typically accept submissions and evidence by email or secure link. Electronic bundles of documents and digital hearing bundles on tablets are common in larger arbitrations. Witnesses can be sworn in via video. The technological infrastructure in NZ (good internet connectivity, etc.) generally supports this well.

Bottom line: Conducting an arbitration with minimal or no in-person contact is entirely feasible in New Zealand. From the filing of the notice of arbitration to the final award, all steps can be done electronically. This can save travel costs and allow international participants to avoid flying in for hearings. It also proved invaluable during pandemic disruptions and is likely to remain a feature of NZ arbitration. Of course, if the parties prefer a traditional in-person hearing, that is still available – but the key is, the format can be tailored to what the parties and arbitrator deem most efficient and fair, including fully online proceedings.

What are some best practices for drafting arbitration clauses under New Zealand law?

A: Drafting an effective arbitration clause is crucial to ensure any future disputes can be resolved smoothly by arbitration. Here are some best practices, with a focus on the New Zealand context:

  • Express Agreement to Arbitrate: Clearly state that the parties agree to submit disputes to arbitration. For example, “Any dispute or difference arising out of or in connection with this contract shall be resolved by arbitration.” This makes the intention unequivocal that neither party can go to court (except as allowed by the Act) for covered disputes[46].
  • Specify the Governing Law and Seat: It’s important to choose New Zealand as the “seat” of arbitration if you want NZ law to govern the arbitration procedure. The seat determines what arbitration law applies – saying something like “the arbitration will be conducted in New Zealand in accordance with the Arbitration Act 1996” is a common formulation[47][46]. The clause should also ideally specify the substantive law governing the contract (e.g. “This contract is governed by the laws of New Zealand”), though that might appear elsewhere in the contract. If the seat is New Zealand, the Arbitration Act 1996 and its default rules (including the Model Law in Schedule 1) will apply by law[3][48].
  • Consider Institutional Rules: While you can have an ad hoc arbitration (no administering institution, just using the Act’s provisions), many parties incorporate a set of arbitration rules to flesh out the procedure. A popular choice for NZ contracts is to reference the AMINZ Arbitration Rules in the clause[47]. For example, the clause could say “…in accordance with the New Zealand Arbitration Act 1996 and its amendments and the AMINZ Arbitration Rules current at the time of the arbitration…”. Using an institution’s rules (AMINZ, ICC, SIAC, etc., depending on context) provides a ready-made procedure for appointing arbitrators, exchange of documents, hearings, etc., which can save time later. If you reference AMINZ Rules, AMINZ will administratively support the arbitration (including appointing the arbitrator if needed). If you prefer ad hoc, you might rely just on the Act and perhaps the default UNCITRAL Rules (which can also be adopted). Choose rules that both parties are comfortable with and that suit the nature of potential disputes.
  • Number of Arbitrators: Specify whether you will have a sole arbitrator or a panel of three. A sole arbitrator is common for most commercial contracts – it’s cheaper and faster to organize. Three arbitrators might be used for very high-stakes or complex matters (ensuring a panel decision). For example: “…by a sole arbitrator to be agreed upon by the parties or, failing agreement within X days, to be appointed by [the AMINZ President/the High Court/etc.]…”. If you want three, specify the mechanism (e.g. each party appoints one, and those two select the third). If not specified, the default under NZ law for ad hoc is a single arbitrator[49] (since the Model Law says one arbitrator by default).
  • Seat vs. Venue: It’s good practice to clarify the “place (seat) of arbitration.” For instance: “The place of arbitration will be Wellington, New Zealand.”[47] This doesn’t mean all hearings must physically be in Wellington, but legally it anchors the arbitration in NZ and under NZ’s Arbitration Act. You can conduct hearings anywhere or virtually, but the seat remains NZ. Specifying a city can be useful for clarity (and may determine the nearest court for any court matters), but just saying “New Zealand” as the seat is often sufficient in an NZ context. Do not confuse the seat with the venue of hearings – the clause can also say “hearings may be held at such location as the tribunal directs,” to allow flexibility.
  • Language: If the contract is between parties from different countries or languages, specify the language of arbitration (e.g. “English”). In NZ contracts it’s usually English by default, but it’s worth stating if there could be any doubt.
  • Confidentiality: Because NZ law already implies confidentiality, you don’t need a detailed confidentiality clause for arbitration, but some parties still include one to reinforce that obligation or to set out any agreed exceptions (for example, allowing disclosure to parent companies or insurers). Given the Act’s provisions, a simple affirmation like “The parties shall keep the arbitration confidential” suffices, or you can rely on the Act’s default.
  • Appeals/Finality: Decide if you want to allow any appeal on legal points. By default (for domestic deals), Schedule 2 allows appeals on questions of law with leave of the court[50]. If you prefer no appeals (pure finality), you should explicitly opt out of Schedule 2, clause 5 in the contract. A clause could say, for example, “The right to appeal to the High Court on any question of law is excluded.” This makes the arbitrator’s award truly final. Conversely, if you think an appeal on important legal errors should be available (maybe for a contract involving significant public interest or novel points of law), you could opt in or leave the provision. Another innovative option, as mentioned earlier, is to agree that any appeal on a point of law will go to an AMINZ Arbitration Appeals Tribunal instead of the courts[26][38]. AMINZ provides model wording for that scenario. The key is to address it when drafting the clause, so everyone knows the level of finality/recourse.
  • Arbitrator Appointment and Qualifications: It’s wise to include how the arbitrator will be appointed if parties cannot agree. Commonly, referencing institutional rules covers this (e.g. AMINZ will appoint if parties don’t agree). In an ad hoc clause, you might write “…by a sole arbitrator to be agreed between the parties or, failing agreement within 21 days of a nomination being requested, to be appointed by the President of AMINZ”[51]. You can also specify any desired qualifications of the arbitrator – for instance, “the arbitrator shall be a New Zealand qualified lawyer with at least 10 years of experience in commercial contracts” or “a retired judge,” or perhaps an engineer or accountant if relevant. Only include such qualifications if truly necessary, as too much specificity can complicate finding a candidate. Often it’s enough to trust the appointing authority or the parties’ judgment to get a suitable person.
  • Multi-tier or ADR clauses: Consider whether you want a mediation step before arbitration. It’s common in NZ to have “tiered” dispute resolution clauses – e.g., negotiation first, then mediation, and if those fail, then arbitration. If so, clearly spell out each stage and timeframes. For example: “In the event of a dispute, senior executives shall meet to attempt resolution. If not resolved within 20 business days, the dispute shall be referred to mediation under AMINZ Mediation Protocol… If mediation is not successful within 60 days of appointment of a mediator, the dispute shall be referred to arbitration…”. Ensure the transition from mediation to arbitration is clearly defined (including what triggers the end of mediation). AMINZ provides model clauses for combined mediation-arbitration provisions[52][53].
  • Scope of Disputes: Use broad language to capture all disputes (“any dispute arising out of or in connection with this contract, including any question regarding its existence, validity or termination”[53]). This prevents arguments that some issues aren’t covered. NZ law favors upholding arbitration clauses, but clarity helps.
  • Severability and Survival: Recognize that the arbitration agreement is separable. The NZ Act already says an arbitration clause is independent of the main contract (it survives even if the rest of the contract is argued to be void)[54]. You can reinforce this by stating “The arbitration agreement shall remain effective notwithstanding any termination or alleged invalidity of this contract.” This ensures any dispute about the contract’s end or validity still goes to arbitration.

By following these practices, you’ll create an arbitration clause that is “fit for purpose, binding, and enforceable”[55][56]. In essence, be clear and comprehensive: state the intent to arbitrate, set the rules for how it will happen (seat, rules, appointment, etc.), and consider any special features (like appeals or multi-step processes) that suit your business needs. A well-drafted clause gives you a reliable roadmap to resolve disputes efficiently under New Zealand law, without uncertainty or procedural fights down the line.

Sources: The above FAQs reference New Zealand’s Arbitration Act 1996 and expert commentary, including the Arbitrators’ and Mediators’ Institute of NZ (AMINZ) guidelines and leading law firm publications, to ensure accuracy and relevance[4][35][26][15].

[1] [2] [26] [38] [40] Arbitration — Arbitrators’ and Mediators’ Institute of New Zealand

[3] [18] [22] [48] ibanet.org

[4] [6] [7] [28] Arbitration Act 1996 – Building Disputes Tribunal

[5] [20] [35] [36] [37] [50] New Zealand | DLA Piper

[8] [9] Interviews with Our Editors: Nicole Smith, Vice-President of AMINZ – Kluwer Arbitration Blog

[10] [11] [34] AMINZ replaces the High Court as the default appointing body for arbitrators

[12] [13] [14] AMINZ Arbitration Rules approved by Council

[15] iadclaw.org

[16] [17] [19] [23] [24] [25] Pros and Cons of Arbitration | LegalVision New Zealand

[21] [29] [30] [31] [32] [33] Enforcement of domestic arbitration awards in New Zealand 

[27] [PDF] Since the last review in 2006, the Arbitration Amendment Act 2007 …

[39] NZDRC ECA90 Rules for Arbitration | NZ Dispute Resolution Centre

[41] [42] [43] [45] dlapiper.com

[44] [PDF] AMINZ Arbitration Rules 2022 – Squarespace

[46] [47] [49] [51] [52] [53] Agreements, Forms and Clauses — Arbitrators’ and Mediators’ Institute of New Zealand

[54] [55] [56] Construction arbitration: Drafting arbitration agreements, the fundamentals