THE IMPORTANCE OF ARBITRATION
The History of Abitration
“All societies in which there exists the right to trade freely between individuals have developed laws and procedures for resolving the disputes which arise. The Courts provide a public forum. Arbitration, and commercial mediation, allow for the private resolution of disputes away from media attention and with confidentiality. This is not a new development; there is evidence of commercial arbitration in Roman times and it was widely used in the law merchant in England from the 13th century.
However in the 19th century there developed an atmosphere of judicial hostility towards arbitration and this endured until the passing of the Arbitration Act in 1996. The courts were generally ready to set aside awards finding that the arbitration had been conducted unsatisfactorily. In my experience at the civil bar throughout the 1960s, 70s and 80s sending a dispute to arbitration was little better than embarking on a depositions hearing, with the inevitability of some sort of rehearing in the High Court.
The Development of Effective Arbitration
All of that was changed by the private members “Arbitration Bill” of Mr. Peter Hilt MP. Arbitration emerged from its chrysalis and became the fully fledged international butterfly it is today. This was not without its birth pains. For a time some of the judiciary in New Zealand seemed to think it was business as usual, but with the powerful support of Lord Cook they came to learn the error of their ways.
The Growth of Arbitration Globally
This growth of arbitration is happening around the world. There is recognition of the need for an internationally proven and judicially supported private method of civil dispute resolution. It is now clear that arbitration is recognised as crucial to the functioning of a market economy, the freedoms and benefits that brings.
The Growth of Arbitration in NZ
As the Courts in New Zealand become less able to find time (overwhelmed by criminal cases), and expertise (no specialist civil jurisdiction) to hear civil disputes, arbitration has prospered. The number of civil cases in the High Court has fallen from 3482 in 1998-1999, to 997 in 2009-2010 and between July 2010 and April 2011 only 572 cases were heard. This trend has been accelerated by the current District Courts rules which are anything but user friendly and cost effective. There is no reason to suppose that traders have become any less litigious and the only tenable explanation for the fall off in civil cases heard in the courts is that arbitration and commercial mediation is taking up the slack. It therefore behooves any lawyer or non legal arbitrator to have sound knowledge of arbitration law and practice. To venture into this field without it may result in a visit to one’s insurers.”
Note: Arbitration will soon be available online.
About the text Arbitration
Arbitration combines legal analysis with practical guidance in relation to the law and practice of Arbitration in New Zealand. Each chapter provides a detailed treatment of a topic, which is at the same time easy to read.
How will Arbitration Online differ from the hard copy version?
The short answer is, it won’t in essential content. It’s the same but with online functionality applied. The text is fully searchable. References to other documents or texts are a click away as they are hyper-linked and because it’s online, it’s easier to update. Arbitration Online will be updated between twice and six times per year.
About Author Anthony Willy
LLB Canterbury University 1964
LLM Canterbury University 1965
Fellow Institute of Arbitrators and Mediators of New Zealand Inc.
1964-1972; Barrister and Solicitor specialising in commercial litigation.
1972-1985; Barrister sole Christchurch specialising in commercial litigation, and arbitration. Lecturer in law University of Canterbury. Moderator for New Zealand of law papers.
1985-2003; District Court Judge specialising in civil and commercial cases. Judge of The Environment Court. Judge of the Land Valuation Court. Accident Compensation Appeal Judge Chairman of the District Courts Rules Committee. Chairman New Zealand Law Society legal Education Committee. Member of The Council of Legal Education of New Zealand.
2003 to date: Taxation Review Authority having concurrent jurisdiction with the High Court in revenue matters Hearings Commissioner Resource Management Act. Arbitrator and commercial Mediator. Member of The Arbitrators and Mediators Institute of New Zealand Inc. 15 years. Council Member 6 years.