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

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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.

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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