ARBITRATION SERVICES

The settlement of disputes by arbitration is an important feature of the domestic commercial and legal landscape.

The primary objective of modern commercial arbitration is the fair, prompt, and cost effective determination of any dispute, in a manner that is proportionate to the amounts in dispute and the complexity of the issues involved.

To ensure that objective is met in the context of domestic arbitration, the Building Disputes Tribunal (BDT) provides a range of arbitration services to meet the needs and requirements of commercial parties, including:

  • ad hoc arbitrations;
  • institutional arbitrations under the BDT Rules; and
  • arbitrations under ‘other’ institutional rules.
Ad hoc arbitration

Ad hoc arbitration is arbitration conducted under the Arbitration Act 1996 by the arbitral tribunal with only limited institutional oversight and support provided by BDT.

This service is particularly suited to parties to existing disputes who:

  • have agreed to refer their disputes to arbitration and who want the flexibility to craft their own bespoke arbitration process and timetable in consultation with the arbitral tribunal; or
  • parties to extant litigation proceedings who wish to refer the subject matter of those proceedings to arbitration to obtain procedural, time and cost certainty and/or to preserve confidentiality.
Fees capped

To provide financial certainty for parties (and their legal advisers) and to ensure that the cost of any ad hoc arbitration undertaken under its aegis is proportionate to the amount in dispute, the arbitrator’s fees are capped based on the amount in dispute.

Limited institutional oversight

BDT’s limited administrative functions and duties in relation to ad hoc arbitrations undertaken under its aegis may include, among other things, any or all of the following, as and when required:

  • providing a shortlist of arbitrators from which the parties may select the arbitral tribunal, where such is requested by the parties;
  • appointing members of the arbitral tribunal where the parties have agreed to delegate that duty to NZDRC;
  • undertaking conflict and availability checks of possible candidates for appointment to the arbitral tribunal;
  • financial management of the arbitration including administering payments in relation to the fees and expenses of the arbitral tribunal and providing accounting to the parties and the arbitral tribunal for same;
  • determining any Additional Fee challenge that might arise;
  • scrutiny and issuance of awards; and
  • arranging hearing facilities.
Institutional arbitration - arbitration under BDT's Arbitration Rules

This comprehensive service is fully administered by BDT’s highly experienced secretariat from submission of the notice of arbitration to the issuance of the final award.

BDT has developed a suite of Arbitration Rules that are robust and certain, yet innovative in their commercial commonsense approach to challenging issues such as appointment, urgent interim relief, expedited procedures, summary procedures for early dismissal of claims and defences, joinder, consolidation, multiple contracts, confidentiality, representation, mediation, arbitral secretaries, expert evidence, appeals, and costs.

The Rules are intended to give parties the widest choice and capacity to adopt fully administered procedures that are fair, prompt, and cost effective, and which provide a proportionate response to the amounts in dispute and the complexity of the issues involved. They provide a framework and detailed provisions to ensure the efficient and cost effective resolution of disputes and are set out in a manner that is easy to use.

This service is primarily directed to parties to commercial contracts who wish to be able to refer any future disputes or differences that may arise in relation to those contracts, to arbitration, and who want procedural, time and cost certainty in the event of such disputes arising. That is achieved by including BDT’s Arbitration Model Clause in commercial contracts at the drafting stage.

However, BDT’s Arbitration Rules may be adopted by agreement in writing at any time before or after a dispute has arisen and parties to existing disputes will often agree to refer such disputes to arbitration governed by BDT’s Arbitration Rules so that they can be assured of that level of procedural, time and cost certainty that is not always available when simply arbitrating under the provisions of the Arbitration Act.

Parties to an existing dispute that have not incorporated the BDT Model Clause into a prior agreement may agree to refer that dispute to arbitration under the BDT Arbitration Rules by signing the Arbitration Agreement in the form found at Appendix 2 to those Rules.

Fees capped

To provide financial certainty for parties (and their legal advisers) and to ensure that the cost of arbitration under BDT’s arbitration Rules is proportionate to the amount in dispute, the arbitral tribunal’s fees are capped based on the amount in dispute.

Institutional oversight

BDT considers itself to be a ‘light touch’ institution. It has powers under the Rules to facilitate the efficient and effective initiation and running of an arbitration where necessary and appropriate, but otherwise, while it maintains administrative oversight and support throughout, the arbitral tribunal has the full conduct of the arbitration in all respects from its constitution until it renders its final award.

BDT’s comprehensive administrative functions and duties in relation to arbitrations undertaken under its suite of Arbitration Rules include, among other things:

  • developing and maintaining a suite of Arbitration Rules that reflect domestic and international best practice;
  • maintaining and operating a Registry service through the offices of its executive and Registrars and its website;
  • receiving and processing applications for arbitration;
  • selection and appointment of the arbitral tribunal including, undertaking conflict and availability checks of candidates for appointment to the arbitral tribunal;
  • processing applications for urgent interim relief and appointing a sole arbitrator or presiding arbitrator under urgency;
  • determining any challenges to the arbitral tribunal;
  • in appropriate circumstances, revoking the appointment of an arbitrator and appointing a replacement arbitrator;
  • administering applications for joinder;
  • administering applications for consolidation, including deciding applications for consolidation prior to the constitution of the arbitral tribunal;
  • administering applications for interim measures;
  • administering applications for mediation and appointment of a mediator that is not an arbitrator where parties agree to mediate during the course of an arbitration;
  • case management which includes liaising with arbitrators, parties and their authorised representatives on proper delivery of notices, monitoring schedules and timelines for submissions, arranging hearing facilities and all other matters which facilitate the smooth conduct of the arbitration;
  • financial management of the arbitration including administering payments in relation to the fees and expenses of the arbitral tribunal and any arbitral secretary, and providing accounting to the parties and the arbitral tribunal;
  • determining any exceptional fee challenge that might arise; and
  • scrutiny and issuance of awards.

In ad hoc arbitration undertaken under BDT’s aegis, the arbitral tribunal, rather than BDT’s Registry staff, would undertake these functions and duties save for making any appointments, scrutiny and issuance of awards, and financial management of the arbitration.

Arbitration under 'other' institutional rules

BDT also provides Registry and administrative services in relation to arbitrations conducted under the rules of other arbitral institutions, whether stipulated in the arbitration agreement, or where parties have agreed to BDT administering such arbitrations subsequent to the dispute arising.

Please contact our Registry staff to discuss the scope, nature and costs associated with the provision of such services.