To ensure that objective is met in the context of domestic arbitration, the New Zealand Dispute Resolution Centre (NZDRC) has developed a suite of Arbitration Rules (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.
Where parties have agreed to arbitrate under the NZDRC Arbitration Rules and the amount claimed by the claimant is greater than or equal to NZ$1M and less than NZ$2.5M, these ECA90 Arbitration Rules will apply unless otherwise agreed by the parties.
In providing a 90 working day expedited arbitration procedure, NZDRC has established itself as a leader in ensuring speedy and cost effective resolution of commercial disputes in New Zealand. While these Rules are particularly suitable for disputes involving claims between NZ$1M and NZ$2.5M, they may be adopted for larger or smaller disputes by agreement of the parties.
NZDRC has long established itself as the leader in private dispute resolution in New Zealand and these updated Rules will allow NZDRC to continue to offer a world class arbitration service that is tailored to meet the needs and requirements of commercial parties, and which is fundamentally and purposively directed to ensuring the resolution of commercial disputes in a manner that is private, efficient, cost effective and certain.
1.1 These are the 90 day Expedited Commercial Arbitration Rules of the New Zealand Dispute Resolution Centre (NZDRC) and may be referred to as the NZDRC ECA90 Arbitration Rules (Rules).
(c) where the claim is for an amount of NZ$2.5M or more, the standard NZDRC Arbitration Rules will apply.
1.4 Unless the Parties have agreed in writing that the Arbitration will be conducted in accordance with a particular version of these Rules, the version of these Rules in effect on the Application for Arbitration is made will apply. Where the Parties have agreed to apply a particular version of these Rules, the Parties will be taken to have agreed in writing that the NZDRC Schedule of Fees and Expenses for Arbitration in effect on the date the Application for Arbitration is made will apply.
1.6 NZDRC owns the copyright to these Rules and they may only be used by Parties, or intending Parties, to an Arbitration administered by NZDRC.
1.7 The functions of NZDRC under these Rules will be performed by the Registrar. All communications to NZDRC must be addressed to the Registrar and all communications with the Arbitral Tribunal must be copied to the Registrar.
APPLICATION FOR ARBITRATION means an application, in the form from time to time published on the Website, for NZDRC to appoint an Arbitral Tribunal and administer the Arbitration under these Rules.
COMMENCEMENT DATE means the date upon which NZDRC communicates the Arbitral Tribunal’s appointment to the Parties by issuing a Notice of Appointment under these Rules.
FEES means NZDRC's fees as set out in Appendix 1 to these Rules.
NEW ZEALAND DISPUTE RESOLUTION CENTRE (NZDRC) means New Zealand Dispute Resolution Centre Limited, a company incorporated under the Companies Act 1993 (company number 2301888).
NOTICE OF APPOINTMENT means a written communication issued by the Registrar confirming the appointment of the Arbitral Tribunal by NZDRC.
REGISTRAR means a Registrar of NZDRC and includes any person deputed to act as a Registrar from time to time.
WEBSITE means the website for NZDRC which can be found at www.nzdrc.co.nz.
(c) a day that is an official holiday or non-business day at the home jurisdiction of NZDRC, the Arbitral Tribunal, or a relevant Party.
5.5 The Parties must pay NZDRC the Preliminary Payment set out in section 1 of Appendix 1 to these Rules either before or immediately after the submission of the Application for Arbitration.
5.6 No administrative or procedural steps will be taken by NZDRC in relation to the appointment of the Arbitral Tribunal until the Preliminary Payment has been paid in full.
6.1 A sole arbitrator will be appointed as the Arbitral Tribunal by NZDRC upon receipt of a duly completed Application for Arbitration and the Preliminary Payment.
6.2 No Party or third person may appoint any arbitrator under the Arbitration Agreement. NZDRC alone is empowered to appoint arbitrators.
6.3 If the Parties have agreed that any person is to be appointed as an arbitrator, that agreement will be treated as an agreement to nominate an arbitrator for all purposes. Any such nominee may only be appointed by NZDRC as an arbitrator subject to his or her prior compliance with Rules 6.20-6.21. NZDRC may refuse to appoint any nominee if it determines, in its sole discretion, that he or she is not suitable, independent, or impartial.
any Party may, after the expiry of five working days from the date NZDRC notifies the Parties that their nominee is unsuitable or unavailable to accept appointment as an arbitrator, request in writing that NZDRC appoint the arbitrator.
6.6 If a Party seeks Urgent Interim Relief before the Arbitral Tribunal has been appointed, the selection and appointment of the Arbitral Tribunal will be made by NZDRC. NZDRC will use best endeavours to appoint the Arbitral Tribunal within one working day of receipt of the application for Urgent Interim Relief.
6.7 For the purposes of Rule 6.6, NZDRC will maintain a panel of specialist arbitrators for appointment where Urgent Interim Relief is sought.
6.15 NZDRC may require each Party to provide such information as it deems necessary to fulfil its selection and appointment function under these Rules. NZDRC will have regard to such information but will not be bound by it in making such appointment as it sees fit.
6.17 Where NZDRC selects and appoints an arbitrator under these Rules, it will have regard to, but is not bound to apply, the International Bar Association Guidelines on Conflicts of Interest in International Commercial Arbitration current at the date of the Application for Arbitration.
6.18 NZDRC will use best endeavours to make any appointment under these Rules within five working days of receipt of an Application for Arbitration and the Preliminary Payment.
6.19 Every decision by NZDRC to appoint an arbitrator under these Rules is final and binding on the Parties. It is not subject to appeal to NZDRC. NZDRC is not required to state or communicate reasons for its decision.
6.22 Any arbitrator conducting an Arbitration under these Rules must be impartial and independent of the Parties. No arbitrator appointed to an Arbitral Tribunal may act as an advocate for, Representative of, or advisor to, any Party. Every arbitrator will, from the time of his or her appointment, assume a continuing duty to immediately disclose to the Parties and NZDRC any circumstances arising in the future which may be likely to give rise to justifiable doubts as to that arbitrator’s impartiality or independence in the eyes of any of the Parties. This duty continues until the Arbitration is concluded.
6.23 Any appointment made by NZDRC under these Rules will be confirmed by a Notice of Appointment issued by the Registrar.
7.3 A Party requesting replacement of an arbitrator must notify the Arbitral Tribunal, every other Party, and NZDRC within five working days after becoming aware of the circumstances that give rise to the challenge (Challenge Notice). The Challenge Notice must state the grounds on which the request for replacement of the arbitrator is based.
7.4 Every other Party and the challenged arbitrator may respond to the challenge. If they wish to exercise that right, they must communicate their response to NZDRC, every other Party, and the Arbitral Tribunal, within five working days of receipt of the Challenge Notice.
7.5 If every Party agrees to the request, or the challenged arbitrator voluntarily withdraws, NZDRC will use best endeavours to appoint a replacement arbitrator within ten working days of receipt of the Challenge Notice. In either case, the replacement of the arbitrator by NZDRC does not imply acceptance of the validity of any ground referred to in the Challenge Notice.
7.6 If every other Party does not agree to the request and the challenged arbitrator does not withdraw, the decision as to whether to appoint a replacement arbitrator will be made by NZDRC after the arbitrator and every Party have had an opportunity to respond to the challenge.
7.7 NZDRC will use best endeavours to make a decision on the request for replacement of the arbitrator within 15 working days of receipt of the Challenge Notice. Such a decision is of an administrative nature and is final and binding on the Parties and the arbitrator. It is not subject to appeal to NZDRC. NZDRC is not required to state or communicate reasons for its decision.
7.11 NZDRC will determine the amount of Fees and Expenses (if any) that it considers appropriate to be paid to the replaced arbitrator in the circumstances.
13.2 Until the Arbitral Tribunal is constituted, each Party must promptly notify NZDRC and every other Party of the names and contact details of all Representatives engaged for the purposes of the Arbitration.
19.7 A Party applying for the early dismissal of a Claim or Defence must, at the same time it files the application with the Arbitral Tribunal, file and serve a copy of the application on every other Party and NZDRC.
26.10 An expert witness must state in any report or written statement that the expert witness has read the NZDRC Code of Conduct for Expert Witnesses and agrees to comply with it.
30.1 A Party may, with notice to every other Party, request an Interim Measure at any time after submitting the Application for Arbitration to NZDRC.
32.2 In any case where such notice is given, the Parties will be deemed to have agreed to refer their dispute to mediation under the NZDRC Mediation Rules.
33.4 If a settlement is reached in respect of all matters in dispute, the Parties will, unless otherwise agreed in writing, bear their own legal and other costs of the Arbitration and, subject to Rule 37.7, share equally the Fees and Expenses of the Arbitral Tribunal, NZDRC’s administrative fees, and any other Expenses related to the Arbitration.
34.13 Subject to payment in full of NZDRC’s administration fees and the Arbitral Tribunal's Fees and Expenses, a copy of the signed Award will be sent to the Parties by NZDRC as soon as possible after signature.
34.15 Unless otherwise agreed, settling Parties will bear their own legal fees and other expenses of the Arbitration and, subject to Rule 37.7, share equally the Fees and Expenses of the Arbitral Tribunal, NZDRC’s administrative fees, and any other Expenses related to the Arbitration.
36.1 Either before or immediately after submission of the Application for Arbitration, the Parties must pay NZDRC the Preliminary Payment as required by Rules 5.5-5.7.
37.1 Unless otherwise agreed by the Parties, the Arbitral Tribunal will fix the costs and expenses of the Arbitration, being the legal and other fees and expenses of the Parties, the Fees and Expenses of the Arbitral Tribunal, NZDRC’s administrative fees, and any other costs related to the Arbitration. The Arbitral Tribunal must direct which Party is to pay all or part of the costs and expenses of the Arbitration and may make an order for costs in favour of any Party.
37.3 Unless the Arbitration is undertaken under NZDRC’s fixed fee service, the Arbitral Tribunal is entitled to fix and be paid a Fee by the Parties that is reasonable having regard to the duties of the Arbitral Tribunal, which Fee may not, except in exceptional circumstances, exceed the Scheduled Maximum Fee, together with all Expenses and outgoings incurred by the Arbitral Tribunal in the execution of those duties in accordance with the terms and conditions set out in Appendix 1 to these Rules.
37.7 Notwithstanding the provisions of Rules 33.4, 34.14, and 37.1, the Parties will at all material times remain jointly and severally liable to pay NZDRC’s administrative fees and the Arbitral Tribunal’s Fees and Expenses, whether the Arbitration is abandoned, suspended, withdrawn, or concluded by agreement or otherwise, before the Arbitral Tribunal makes an Award fixing the costs and expenses of the Arbitration, together with any additional costs incurred by NZDRC in recovering any overdue monies, on a full indemnity basis.
38.5 Any person intending to make disclosure under Rule 38.4 must, within a reasonable period of time prior to the intended disclosure, notify the Arbitral Tribunal, every Party, and NZDRC.
39.1 The Parties, together and separately, release and discharge the members of the Arbitral Tribunal and NZDRC, its agents and employees, from all liability of any kind (whether involving negligence, misrepresentation, breach of contract, or breach of any equitable, fiduciary, statutory or other duty, or otherwise) which may be alleged to arise in connection with, or to result from, or to in any way relate to the exercise of any of their functions, duties or powers, whether under the procedural law of the Arbitration, under these Rules, or otherwise, unless the act or omission is the fraudulent act of the Arbitral Tribunal, NZDRC, its agents or its employees. Any member of the Arbitral Tribunal, NZDRC, or any agent or employee of NZDRC who has not acted fraudulently and is shown to be unaware of the fraud of any other person, will continue to be released and discharged from liability as provided in these Rules.
39.2 No statements or comments, whether written or oral, made or used by the Arbitral Tribunal, NZDRC, its agents or employees, in connection with, or resulting from, or in any way relating to the Arbitration, may be relied upon to found or maintain any action for defamation, libel, slander, or any related complaint.
39.3 The Parties, together and separately, undertake to indemnify and keep indemnified the members of the Arbitral Tribunal and NZDRC, its agents and employees, against all claims, costs, expenses, liabilities, awards, damages, and proceedings of any kind (properly sustained or incurred by them directly, or indirectly made by any third party) in relation to, or in connection with, the exercise of their functions, duties, or powers, whether under the procedural law of the Arbitration, under these Rules, or otherwise, unless the act or omission is the fraudulent act of the Arbitral Tribunal, NZDRC, its agents or its employees. If a member of the Arbitral Tribunal, NZDRC, or any agent or employee of NZDRC has not acted fraudulently and is shown to be unaware of the fraud of any other person, he or she will continue to be indemnified as provided in these Rules.
39.4 After the Final Award is made and all possibilities of correction, interpretation, or Additional Awards have expired, NZDRC, its agents and employees, the Arbitral Tribunal, and any expert appointed by the Arbitral Tribunal, will not be under any legal obligation to make any statement to any person about any matter concerning the Arbitration, nor shall any Party seek to call any of these persons to give evidence in any legal proceedings arising out of or in connection with the Arbitration.
39.5 The purpose of Rules 39.1-39.4 is to provide the Arbitral Tribunal, NZDRC, its agents and employees, and any expert appointed by the Arbitral Tribunal, with the widest immunity from liability that the law will allow.
41.5 Routine communications and notifications between NZDRC, the Arbitral Tribunal, and the Parties, may validly be made by email, or any other means of communication that provides or allows for a record of transmission.
42.1 All decisions of NZDRC with respect to its functions and obligations under these Rules are final and binding on the Parties and the Arbitral Tribunal. Such decisions are of an administrative nature and, unless the Rules expressly provide otherwise, NZDRC is not required to state or communicate reasons for its decisions.
42.2 By agreeing to Arbitration under these Rules, the Parties and the Arbitral Tribunal are deemed to have agreed not to apply to any court, judicial authority, or any other body having jurisdiction, for any relief regarding NZDRC’s jurisdiction or authority under these Rules, so far as that agreement is not inconsistent with the law of the Seat of Arbitration.
42.3 In all matters not expressly provided for in these Rules, the Parties, NZDRC, and the Arbitral Tribunal must act in the spirit of these Rules and must make every effort to ensure that an Award made under these Rules is enforceable.
NZDRC provides a fully administered arbitration service. To ensure that the cost of arbitration is proportionate to the amount in dispute, our arbitrators’ fees are capped based on the amount in dispute.
No administrative or procedural steps will be taken by NZDRC in relation to the appointment of the Arbitral Tribunal until the Preliminary Payment has been paid in full.
NZDRC provides a fully administered fixed fee arbitration service under the NZDRC ECA45 Rules for disputes where the Claim if for a monetary amount and the amount claimed by the Claimant is less than NZ$50,000.00, and where there are three or less items in dispute in the Claim and Counterclaim. The number of items at issue that may be dealt with under the fixed price low value claim service is strictly limited.
A Notice of Appointment of the Arbitral Tribunal will not be served on the Parties by NZDRC until the Parties have paid (in clear funds) into the trust account of NZDRC the prescribed Fee in full as security for the Arbitral Tribunal’s Fees and Expenses in accordance with the above schedule.
In exceptional circumstances NZDRC may, on application by an arbitrator, copied to every Party, fix the amount that the arbitrator is entitled to be paid at a higher figure than the Scheduled Maximum Fee after allowing every Party an opportunity to respond. If a Party wishes to exercise that right, that Party must within five working days of receipt of the arbitrator’s application for additional payment, communicate its response to NZDRC, the arbitrator, and every other Party.
For the avoidance of any doubt, a decision by NZDRC to increase the Fee that an arbitrator is entitled to be paid above the Scheduled Maximum Fee is a decision of an administrative nature made under Rule 42.1.
NZDRC is entitled to recover the actual and reasonable Expenses of the Arbitration in addition to the Fee.
If an arbitrator becomes in fact or in law, or by reason of infirmity, unable to perform the functions of that office, or withdraws from office, or is replaced in accordance with Rules 6.18 or 7.1-7.7, NZDRC will determine the amount of Fees and Expenses to be paid to the replaced arbitrator (if any). NZDRC will take into consideration the circumstances of the case, including, but not limited to, the basis for withdrawal or grounds for replacement, the work done by the arbitrator in connection with the Arbitration, and the complexity of the subject matter.
In the event of any dispute arising in relation to the Additional Fee fixed by the arbitrator, NZDRC will determine the additional amount that the arbitrator is entitled to be paid after allowing every Party an opportunity to respond. If a Party wishes to exercise that right, that Party must within five working days of receipt of notice of the proposed Additional Fee communicate its response to NZDRC and the arbitrator.
For the avoidance of any doubt, a decision by NZDRC as to the Additional Fee that an arbitrator is entitled to be paid for determining any application for Interim Relief, early dismissal of a Claim or Defence, Joinder, or Consolidation, is a decision of an administrative nature made under Rule 42.1.
During the course of the Arbitration, NZDRC may from time to time request one or several further supplementary, interim, and/or final advances and deposits from the Parties towards the Fees and Expenses of the Arbitration, incurred or to be incurred on behalf of, or for the benefit of the Parties. All such advances are to be paid into the trust account of NZDRC on demand.
Any interest which may accrue on such deposits will be retained by NZDRC as its own property.
The Preliminary Payment must be made to NZDRC either before or immediately after submission of the Application for Arbitration.
NZDRC may from time to time request one or more Supplementary Payments from the Parties towards the Fees and Expenses of the Arbitration, incurred or to be incurred on behalf of, or for the benefit of the Parties.
The Parties must pay all Supplementary Payments within three working days of receipt of request by NZDRC for such additional Fees and Expenses.
If the Fees and Expenses of the Arbitration are less than the amount held by NZDRC as security, NZDRC will provide the Arbitral Tribunal’s Award to the Parties as soon as practicable after the Arbitral Tribunal has made its Award.
In the event that the Fees and Expenses of the Arbitration are greater than the amount held as security, the Parties will be advised as soon as practicable by NZDRC of the Arbitral Tribunal’s actual Fees and Expenses, and the Parties will be requested to pay the balance in order to uplift the Award. When the balance is paid in full, a copy of the Award will be provided to each of the Parties by NZDRC.
As soon as practicable after the Final Award has been provided to the Parties, NZDRC will render a final statement of accounting to the Parties of deposits and advances received and payments made to the Arbitral Tribunal, and NZDRC will reimburse any unexpended balance of the security amount to the Parties in the manner determined by the Arbitral Tribunal.
No administrative or procedural steps will be taken by NZDRC while any payment is due under these Rules.
However, and notwithstanding any agreement as between the Parties, the Parties will at all times be jointly and severally liable for the Arbitral Tribunal’s Fees and Expenses, whether or not it makes an Award fixing the costs and expenses of the Arbitration, together with the NZDRC Administration Fee and any costs howsoever incurred by NZDRC in recovering any overdue monies on a full indemnity basis.
Payment of all NZDRC Fees and Expenses may be made by direct credit, bank transfer, or by credit card (Visa and MasterCard only). A merchant transaction fee of 2.95% is payable in addition to the published NZDRC Fee for all credit card payments.
In the event that the dispute is settled or the Arbitration Agreement is withdrawn by the Parties before a Partial Award is made that determines all of the matters at issue, the Arbitral Tribunal’s Fees and Expenses incurred prior to that date, including any entitlement to Cancellation Fees and any outstanding balance of the NZDRC Administration Fee will be deducted from the amount paid as security by the Parties for the costs of the Arbitration.
The balance of the security monies will be refunded to the Parties in the proportions in which the security payment was made, unless the Parties agree otherwise and instruct NZDRC accordingly in writing within five working days of notice of settlement or withdrawal of the Arbitration Agreement.
In the event that the combined amount of the Fees and Expenses and the NZDRC Administration Fee are greater than the amount held as security, the Parties must pay the balance within five working days of receipt of notification by NZDRC of such additional Fees and Expenses.
The Claimant and the Respondent have agreed that [all matters in dispute between them / the matters in dispute between them set out in the Schedule attached hereto (delete one)] shall be referred to Arbitration for final determination in accordance with the Arbitration Rules of the New Zealand Dispute Resolution Centre (NZDRC Arbitration Rules).
I agree to be bound by the terms of this Arbitration Agreement and the NZDRC Arbitration Rules.
I have read and understand that I am bound by Rules 38.2-38.7 of the NZDRC Arbitration Rules. I understand that by being involved in, or being privy to, NZDRC Arbitration, I am bound by these Rules.
These Guidelines are intended to assist experts, Parties, and their Representatives, to understand experts’ obligations and NZDRC’s requirements in relation to the preparation of reports, joint conferences of experts, and the hearing of concurrent evidence in Arbitration under these Rules.
1.1 NZDRC wishes to ensure that experts understand their responsibilities and obligations, and that a common approach to the preparation of reports is adopted and followed.
Material protected by this copyright notice may be reproduced and used by parties, or intending parties, to Arbitration administered by NZDRC, without formal permission or charge, provided that the material is reproduced accurately using the most up to date version, that the material is not used in a manner that is misleading or deceptive, and that the source and copyright of the material is acknowledged. Otherwise, no part of the material protected by this copyright notice may be copied, reproduced, utilised, adapted, distributed, republished, downloaded, modified, displayed, posted, stored in a retrieval system, printed, or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying or otherwise, on-sold, commercialised, or used to create derivative works, without NZDRC's express and prior written permission.