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ReSolutionNew Zealand Dispute Resolution Centre / New Zealand International Arbitration Centre
WINTER 2014
Welcome to our seventh edition of ReSolution in which we bring
you commentary, articles and reviews on topical matters relating
to domestic and international dispute resolution.
Family law reforms
Justice Minister Judith Collins introduced the Family Court Proceedings Reform
Bill to Parliament on 27 November. The Bill introduces many changes to the family
law system in New Zealand and makes significant changes to the Care of Children Act
2004 (COCA) and the Family Courts Act, which is re-named the Family Disputes
(Resolution Methods) Act 1980 (FDRMA).
The Bill is aimed at encouraging faster, less adversarial resolution of family disputes
through requiring parties to disputes about children to participate in an out-of-court
family dispute resolution process, and a parenting information programme, before
applying to the Family Court.
Primarily, the court will now be a last resort for dispute resolution of family issues. The
main impetus of the Bill is to focus on personal interaction with the dispute resolution
process and to remove the delays and expense involved in the court process.
The primary service to replace the court system is a family dispute resolution (FDR)
service. The service involves a mediator assisting the parties to discuss and reach
familial arrangements without the need of a lawyer or judge, although legal
representation is not prohibited. The service is not free, however there is subsidised
government funding available for those who are eligible.
Inside this issue:
Supreme Court Confirms Power to Grant Declaratory and Anti-Suit Injunctive Relief Even Where No Arbitration is
Commenced or Proposed
19
The Devil is in the Detail:
Multi-Tiered Dispute Resolution Clauses Must
be Certain and Specific
24
Breach of Fair and
Equitable
Treatment Standard
(ICSID)
26
Getting to Yes too
soon:
When Negotiations
Create Obligations
34
Technology Contracts, limitations of Liability and
Interim Injunctions:
AB v CD
36
Disclosure of Partial
Settlements
In Multi-Party Litigation
40
Arbitration in Singapore
2013:
A Year in Review
42
Is it an Arbitration
Agreement? 49
Model Clauses 55
Issue 7
Issue 7
Editorial
ReSolutionNew Zealand Dispute Resolution Centre / New Zealand International Arbitration Centre
Page 2 Issue 7
FDR Centre launched
We are delighted to announce the launch of the New Zealand Family Dispute Resolution Centre (FDR Centre). The
FDR Centre is a wholly owned subsidiary of NZDRC and was established in response to recent government reforms
that have changed the way parents and guardians are required to manage care and contact arrangements for
children.
The FDR Centre provides fully administered nationwide FDR, Mediation, Conflict & Communication Coaching, and
Counselling services for families in conflict and relationships in difficulty. The Centres services are flexible and cover
all aspects of family and relationship conflict including:
The FDR Centre helps families resolve issues privately without going to court. Importantly our services allow parties
to resolve all issues privately in the one forum i.e. parenting matters and relationship property, parties are welcome
to be assisted at mediation by a lawyer (or any other person), and there is no time limit on the provision of FDR
Services (or any other Service) the parties can have as much time as they need to properly work through the
issues.
The FDR Centre works with New Zealand's most respected accredited FDR providers and preparatory counsellors, family and relationship mediators, conflict & communication coaches, and counsellors. The FDR Centre is dedicated to: providing timely, professional, cost effective FDR services and general family and relationship dispute
resolution services; assisting families to self-resolve matters relating to the care of children putting the welfare and best interests
of children first, and without recourse to the Family Court; achieving positive and lasting outcomes for parents and guardians, children, and other family/whnau
members; and
fostering learning, collegiality and professional development for the providers of its services.
Parenting / Care and contact issues
Relationship property
Extended family issues
Repartnered / blended family issues
Adolescent / teenage issues
Gender issues
Sexuality issues
Separation
Multi generational issues
Multi cultural relationships
Adult family and elder care
Illness and disabilites
ReSolutionNew Zealand Dispute Resolution Centre / New Zealand International Arbitration Centre
Page 3 Issue 7
The FDR Centres comprehensive website can be found at www.fdrc.co.nz. With its well developed procedural rules
and simple online application forms, the website provides an efficient and user friendly portal to its professional and
efficient services.
International: ICCA 2018
- Australasia to host the worlds largest arbitration event and its coming to a place near you!
Thanks to the joint bid effort of the Australasian Council for International Commercial Arbitration (ACICA) and AMINZ,
the 2018 ICCA conference has been confirmed as being hosted in Sydney, with an add-on event in Queenstown.
The bid won out over Moscow, Kuala Lumpur and Hong Kong and is seen as a nod to Australasias growing
reputation as an international commercial arbitration centre.
NZIAC was pleased to support the joint ACICA/AMINZ bid and we are delighted that ICCA members and conference
delegates will have the opportunity to experience first hand the expertise of the Australasian arbitral community and
to enjoy the hospitality that the region is renowned for.
NZIAC was established to provide an effective forum for the settlement of international trade, commerce, investment,
and cross-border disputes in the Australasian/Pan Pacific region and to promote New Zealand as a seat and venue for
international commercial arbitrations and mediations.
With its well developed and trusted legal system, world class infrastructure and safe nation status, New Zealand is
ideally positioned to become the regions premier dispute resolution hub to handle the expected growth in complex,
cross border commercial and investment disputes. We cannot help but benefit from the exposure the ICCA
conference will bring.
NZIAC soon to launch new Rules
NZIAC will launch a new and substantially revised edition of its International Arbitration Rules in the next few months
following a comprehensive 18 month revision process. The new Rules are robust, certain and innovative in their
commercial commonsense approach to challenging issues such as appointment, urgent interim relief, expedited
procedures, joinder, confidentiality, representation, mediation, expert evidence, appeals and costs. The Rules provide
both a framework and detailed provisions to ensure the efficient and cost effective resolution of international
disputes. The Rules are set out in a manner designed to facilitate ease of use and may be adopted by agreement in
writing at any time before or after a dispute has arisen.
ReSolutionNew Zealand Dispute Resolution Centre / New Zealand International Arbitration Centre
Page 4 Issue 7
The new Rules are tailored to meet the needs and requirements of global and regional commercial parties and are
fundamentally and purposively directed to ensuring the resolution of international commercial disputes in a manner
that is efficient, cost-effective, and certain.
NZIACs new International Arbitration Rules will allow NZIAC to offer a world-class dispute resolution service to global
and regional commercial parties and place NZIAC at the cutting edge of international arbitration. There is no question
that the proposed release of the Rules in 2014 will be keenly followed and will undoubtedly mark one of the most
significant developments on the international arbitration scene this year.
The New suite of Rules includes Expedited Arbitration Rules as the default for lower value claims, International
Mediation Rules and Arb/Med Rules to meet the growing need for these processes in the region and to provider
certainty in the delivery of those services.
Recent and proposed changes to New Zealand law
Having passed its first reading, the Judicature Modernisation Bill will bring many changes to New Zealand court
processes. The Bill proposes changes that will also affect the Arbitration Act 1996. These changes include:
Recognition of emergency arbitration procedures as interim relief before full arbitration is conducted; and
Where parties are unable to agree on an arbitrator, a more efficient procedure for arbitrator appointment.
The Trans-Tasman Proceeding Act 2010 came into force on 11 October 2013. The Act harmonises the business
regime in Australia and New Zealand. Some noteworthy effects that the Act has are:
There is no need to seek judicial leave or prove domestic connection in order to serve proceedings on an Au