New Zealand

Arbitration is an increasingly popular form of dispute resolution in New Zealand, particularly for disputes relating to construction and property. It is also popular for general commercial disputes. The arbitration framework is based on the UNCITRAL Model Law and New Zealand is a party to the New York Convention and the ICSID Convention. The New Zealand courts are independent and arbitration friendly. New Zealand is widely perceived as an effective and well-regulated forum for arbitration.

1.1 Advantages

New Zealand offers a compelling seat for arbitration, underpinned by a strong commitment to the rule of law and alignment with international norms. It benefits from an independent, high-quality judiciary that is well trained in commercial and arbitration matters, and consistently supportive of the arbitral process. The arbitration community is well developed, with an active professional body in AMINZ, and parties have access to a range of modern arbitral rules and both ad hoc and institutional arbitration options, providing flexibility and confidence in the process.

1.2 Disadvantages and common pitfalls

New Zealand is a relatively small arbitration market, with domestic arbitrations far more prevalent than large-scale international arbitrations. As a result, many prominent New Zealand arbitration lawyers are based overseas, although an increasing number are choosing to practice from New Zealand. New Zealand may also be perceived as a higher-cost seat, especially for overseas parties when travel, accommodation and professional fees are taken into account. However, this would be offset by those using local counsel, as rates for New Zealand lawyers are comparatively low compared with the leading global arbitration seats.

1.3 Distinctive features

Arbitration in New Zealand is characterised by several distinctive statutory features. Under the Arbitration Act 1996 (the “Act”), The Arbitrators’ and Mediators’ Institute of New Zealand (AMINZ) is designated as the default appointing authority, providing a clear and reliable (non-court based) mechanism for tribunal appointments where parties have not agreed otherwise. A single statute governs both international and domestic arbitration, with Schedule 1 applying by default to all arbitrations and Schedule 2 applying only to domestic arbitrations unless expressly agreed otherwise. Notably, for domestic arbitrations, Schedule 2 permits appeals on questions of law, reflecting a balance between finality and judicial oversight that is less common in many other arbitral regimes.

2.1 Legal framework

New Zealand’s arbitration landscape is primarily governed by the Act. The Act is based on the UNCITRAL Model Law, with only minimal modifications made. New Zealand is also a part of several international treaties to support the enforcement of arbitral agreements and awards. The High Court of New Zealand, which is the superior court with general jurisdiction, has supervisory jurisdiction over arbitral proceedings.

2.2 What qualifies under domestic law as “international arbitration”? Is there a specific statute?

Under the Act, an arbitration is considered international if (Article 1(3) of Schedule 1):

• the parties have their places of business in different states at the time of the conclusion of the arbitration agreement; or
• one of the following places is situated outside the state in which the parties have their places of business:
  • the place of arbitration if determined in, or pursuant to, the arbitration agreement; or
  • any place where a substantial part of the obligations of any commercial or other relationship is to be performed or the place with which the subject matter of the dispute is most closely connected; or
• where the parties have expressly agreed that the subject matter of the arbitration agreement relates to more than one country.

2.3 Ratification of the New York Convention

The New York Convention was signed and ratified by New Zealand without reservation. Section 5(f) of the Act states that a purpose of the Act is to give effect to the New York Convention.

2.4 Ratification of the ICSID Convention

The ratification of the ICSID Convention in New Zealand took place on 2 September 1970, with New Zealand becoming a party to the ICSID Convention on 2 May 1980.

2.5 Other treaties relating to arbitration

Other treaties relating to arbitration in New Zealand are:

• Protocol on Arbitration Clauses (1923); and
• Convention on the Execution of Foreign Arbitral Awards (1927).

2.6 Choice of forum for intra-EU dispute settlement

New Zealand is unlikely to be a forum of choice to settle intra-EU disputes, given its geographical distance. However, in Sodexo Pass International SAS v. Hungary [2021] NZHC 371 (Sodexo), the High Court accepted a French investor’s application to have an ICSID arbitral award against Hungary recognised domestically. Hungary raised sovereign immunity as a jurisdictional defence, but the High Court held that, by acceding to the ICSID Convention, Hungary had waived its adjudicative immunity for recognition proceedings and that New Zealand was obliged to recognise the award as if it were a domestic judgment, while reserving any state immunity issues for the later execution/enforcement stage. The decision illustrates how New Zealand courts may serve as a forum for recognition of international investor–state arbitration awards, even for disputes between EU parties.

2.7 Is the municipal law governing arbitration based on UNCITRAL Model Law?

Yes, the municipal law governing arbitration (Arbitration Act 1996) is based on the UNCITRAL Model Law on International Commercial Arbitration.

2.8 Recent amendments or reforms in arbitration laws

Amendments were made to the Act in 2007, 2016 and 2019. It is noted that in 2025, the United Kingdom updated and modernised its Arbitration Act. It remains to be seen whether New Zealand will follow suit.

3.1 Presence of local arbitration institutions

Local arbitration institutions in New Zealand are the Arbitrators’ and Mediators’ Institute of New Zealand Inc (AMINZ); the New Zealand Dispute Resolution Centre (NZDRC); and the New Zealand International Arbitration Centre (NZIAC).

Resolution Institute also has a presence in New Zealand but is primarily an Australia-based organisation.

3.2 Does the London Court of International Arbitration (LCIA) have a local office?

The LCIA does not have a local office in New Zealand.

3.3 Does the Permanent Court of Arbitration (PCA) have a local office?

The PCA does not have a local office in New Zealand.

3.4 Does the ICC International Court of Arbitration have a local office?

The ICC International Court of Arbitration does not have a separate local office but there is a local liaison body called the ICC National Committee (ICC NZ). The foundation members of the ICC NZ are the four regional Chambers of Commerce in New Zealand, and they established the ICC NZ in 2000. The ICC NZ, in turn, established the ICC NZ International Arbitration Committee (IAC) to help assist the use of ICC arbitration locally in respect of the ICC Rules of Conciliation and Arbitration (1975).

3.5 Does the International Centre for Dispute Resolution (ICDR) have a local office?

The ICDR does not have a local office in New Zealand.

3.6 Agreement entered into with local offices of international arbitration institutions

Not applicable.

The Act defines an arbitration agreement as “an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not” (section 2(1)).

4.1 Requirements as to content and form

To be a valid agreement, it must either be made orally or in writing (Article 7(1) of Schedule 1). In cases of consumer-trade contracts, they are only enforceable if they meet stricter formal requirements as per section 11.

A written agreement is defined very broadly. It must either be in the form of an arbitration clause in a contract or a separate agreement. A reference to a separate contract containing an arbitration clause can also suffice as a valid agreement, but only if the reference makes the clause part of the contract.

4.2 Validity of arbitration agreements

The validity of an arbitration agreement is assessed by reference to both general contract law principles and the Act. There must be a valid contract. Issues such as incapacity, duress, misrepresentation, mistake or illegality may render an arbitration agreement invalid, just as they would any other contract.

Validity may also be affected where the dispute is not arbitrable as a matter of law (for example, certain statutory or public law matters), or where enforcement would be contrary to public policy. In consumer and employment contexts, additional statutory protections may apply.

4.3 Special formalities

There are no special formalities for the formation of an arbitration agreement beyond those required by the Act and ordinary contract law. Insofar as possible, the New Zealand courts adopt a practical and pro-arbitration approach, focusing on whether the parties objectively intended to submit disputes to arbitration rather than on technical formalities.

4.4 Governing law

In New Zealand, the governing law will likely be the law expressly chosen by the parties, or, when there is no choice, whether the parties have impliedly chosen a law, which is often inferred from the law governing the underlying contract. In the absence of any express or implied choice, the arbitration agreement will be governed by the law with which it has the closest and most real connection, which is frequently the law of the seat of arbitration.

When deciding whether a dispute is arbitrable, there are two components to consider: whether the dispute can be resolved by arbitration and whether the dispute falls within the scope of the arbitration agreement.

5.1 Applicable restrictions

Section 10 of the Act governs the arbitrability of a dispute. The only limitations arise where the arbitration agreement is “contrary to public policy or, under any other law, such a dispute is not capable of determination by arbitration”. Whether a dispute falls within those exceptions is ultimately a matter for the arbitral tribunal and/or the court’s discretion.

Examples include child guardianship (Wade v. Wade [2022] NZHC 3254) and whakapapa (Māori ancestry/kinship), because it would be an abuse of process (Ngawaka v. Ngāti Rehua-Ngātiwai Ki Aotea Trust Board (No. 1) [2021] NZHC 291). The use of arbitration agreements in consumer contracts is also restricted. Unless a consumer contract meets the specific criteria in section 11, the contract cannot be subject to arbitration, ensuring that individual consumers (not corporates) are forced into compulsory arbitration. Disputes involving trusts are generally arbitrable under sections 142–148 of the Trusts Act 2019 and section 10A of the Act.

A stay of proceedings or anti-suit injunction (ASI) is issued in circumstances where there is a need to uphold and enforce the parties’ contractual bargain.

6.1 Stay of proceedings

A stay of proceedings is mandatory under New Zealand law where litigation has been commenced in breach of a valid arbitration agreement. Article 8(1) of Schedule 1 requires the High Court to stay proceedings and refer disputes to arbitration, unless it finds the agreement “null and void, inoperative, or incapable of being performed, or that there is not in fact any dispute between the parties with regard to the matters agreed to be referred”. These final words have been added to the Model Law provision and constitute a difference between New Zealand law and international practice. This mandatory nature is confirmed by numerous cases, including Antipodes New Zealand Ltd v. Accel (HK) Company Ltd [2021] NZHC 1623 and Tavendale & Partners Ltd v. Dineen [2022] NZHC 1530.

The High Court retains a residual discretion to stay proceedings in favour of litigation, grounded in its inherent jurisdiction. As a result, the court may choose to stay proceedings in circumstances where Article 8(1) has not been engaged. This was the case in Danone Asia Pacific Holdings Pte Ltd v. Fonterra Co-operative Group Ltd [2014] NZCA 536, where the Court of Appeal exercised its discretion to uphold a temporary case management stay.

6.2 Anti-suit injunctions

An ASI is available as a measure to prevent harm against an arbitration clause as a result of foreign proceedings. In practice, they have been used infrequently in New Zealand and are considered a last resort. Nonetheless, the High Court recently held that comity may have a diminished role when a party has brought an action in breach of an arbitration clause (Maritime Mutual Insurance Association (NZ) Ltd v. Silica Sandport Inc [2023] NZHC 793). This is demonstrative of the pro-arbitration stance of the New Zealand courts.

7.1 Restrictions on the parties’ freedom to choose arbitrators

New Zealand law does not impose any restrictions on the parties’ freedom to choose arbitrators. However, if parties are unable to reach an agreement, the default procedure applies.

7.2 Requirement of arbitrator independence and impartiality

Arbitrators are required to be independent and impartial (Article 12(1) of Schedule 1). An objective test is applied to any claim of breach, being “whether a fair-minded lay observer might reasonably apprehend a lack of impartiality” (Saxmere Co Ltd v. Wool Board Disestablishment Co Ltd [2009] NZSC 72).

The AMINZ Arbitration Rules also contain the same obligations, including a statement of impartiality and independence.

7.3 Mandatory rules applicable to the appointment process

The mandatory rules governing the appointment of arbitrators are set out primarily in the Act, which apply unless the Act expressly permits party agreement to the contrary. Key mandatory rules include party equality and opportunity, default appointment mechanisms, independence and impartiality, a challenge procedure and court supervision.

7.4 Appointment mechanism in the absence of party agreement or applicable institutional rules

If parties are unable to agree on an appointment procedure, Article 11(3) of Schedule 1 contains the applicable default procedures that shall apply. Each party appoints one arbitrator in a three-member tribunal (with the chair appointed by the two arbitrators), or a sole arbitrator is appointed by agreement, failing which any missed or deadlocked appointment is made by the appointed body upon a party’s request (currently, AMINZ).

7.5 Mandatory rules applicable to the replacement process

When an arbitrator’s mandate ends for any reason, Article 15 of Schedule 1 provides that a substitute must be appointed using the same procedure as the original appointment, prior hearings may be repeated depending on the role of the replaced arbitrator and prior tribunal rulings remain valid despite the change in composition.

7.6 Mandatory disclosure obligations

An arbitrator must “disclose any circumstances likely to give rise to justifiable doubts as to that person’s impartiality or independence” from the time of appointment and throughout the arbitral proceedings (Article 12(1), Schedule 1).

7.7 Grounds for challenge

Article 12(1) of Schedule 1 details the grounds for challenge of arbitrators. Arbitrators can only be challenged “if circumstances exist that give rise to justifiable doubts as to that arbitrator’s impartiality or independence, or if that arbitrator does not possess qualifications agreed to by the parties”. The challenging party may only challenge for reasons of which it became aware after the appointment has been made.

7.8 Mandatory rules governing the challenge of arbitrators

Article 13 of Schedule 1 details the process for the challenge of an arbitrator. If the parties do not agree on a challenge procedure, a party must notify the tribunal of the reasons for the challenge within 15 days, the tribunal decides the challenge unless the arbitrator withdraws, and any unsuccessful challenge may then be referred to the High Court, whose decision is final, while the arbitration may continue pending that decision.

7.9 Removal

In addition to Articles 12 and 13 of Schedule 1, Article 14 of Schedule 1 provides that an arbitrator’s mandate terminates if they withdraw or the parties agree due to legal or factual inability or undue delay, and if any dispute remains, the High Court may determine termination with no right of appeal.

7.10 Liability and immunity of arbitrators

Section 13 states that “[a]n arbitrator is not liable for negligence in respect of anything done or omitted to be done in the capacity of arbitrator”. It is very common for arbitrators in their terms of appointment to include a broader exclusion of liability.

8.1 Interim measures

8.1.1 Overview of interim measures

The governance of an arbitral tribunal to grant an interim measure in New Zealand is based on the UNCITRAL Model Law and is reflected in Articles 17–17M of Schedule 1 to the Act.

The court, by authority of Article 9 of Schedule 1, has the “same powers as an arbitral tribunal to grant an interim measure under Article 17A for the purposes of proceedings before that court, and that Article and Article 17B apply accordingly subject to all necessary modifications”. This is also affirmed by the High Court cases of Discovery Geo Corporation v. STP Energy Pte Ltd [2012] NZHC 3549 and Worldwide Holidays Ltd v. Liu [2018] NZHC 3443.

8.1.2 Relevance of availability of emergency arbitrator mechanism

In 2016, the Act was amended to expressly include emergency arbitrators under the definition of “arbitral tribunal” (section 2(1)), ensuring the recognition and enforcement of awards under the Act.

8.2 Taking of evidence

Upon the request of an arbitral tribunal or party (with approval of the arbitral tribunal), courts are authorised to assist arbitral tribunals with the taking of evidence (Article 27 of Schedule 1).

Specifically, the court can assist by:

• ordering subpoenas and issuing witness summons, as well as compelling the attendance of a witness before the tribunal to give evidence or produce documents; and
• making orders for discovery or interrogatories, to require the taking of evidence outside the jurisdiction, or the preservation of any property or thing that is in issue in the arbitration.

8.3 Appointment or challenge of arbitrators

New Zealand courts may assist in the appointment or challenge of arbitrators. However, this is not common, as the Act provides a statutory default mechanism for appointment.

As above, the appointment of an arbitrator is governed by Article 11 of Schedule 1, while Article 13 sets out the process for the challenge of an arbitrator, including the ability to refer an unsuccessful challenge to the High Court.

8.4 Other available assistance

No other types of assistance to arbitrations are commonly available.

9.1 Domestic scope of sovereign immunity from jurisdiction

Sovereign immunity is governed by common law principles, as there is no comprehensive statutory regime in New Zealand, unlike in the United Kingdom, which has the Statutory Immunity Act 1978 (UK). The common law restricts the application of sovereign immunity, so immunity can only apply to the state’s sovereign or public acts, and it does not extend to commercial activities.

There is no single unified approach under New Zealand domestic law. The courts assess whether Sovereign immunity should apply on a case-by-case basis, with the courts deciding whether the specific act was sovereign or commercial and/or whether the state has expressly or impliedly waived any immunity.

As above, the leading case which discusses Sovereign immunity is Sodexo, which was in the context of the ICSID Convention. The court held that, by acceding to the ICSID Convention, Hungary had waived its immunity for recognition proceedings.

9.2 Immunity from execution

There have been no cases in New Zealand where the court has enforced an arbitral award against a state’s assets. In Sodexo, the court did not determine whether Hungary had waived its immunity in the context of enforcement proceedings.

In New Zealand, the general procedural requirements are designed to ensure fairness while giving parties and arbitrators flexibility. Hearings may be held at the agreed seat of arbitration, in person, or virtually, depending on the parties’ agreement or the tribunal’s discretion. Articles 24–25 of Schedule 1 provide that the tribunal may proceed if a party fails to participate, including making a decision on the evidence and submissions available, ensuring the arbitration is not stalled by non-cooperation. While arbitrators are generally required to hold a hearing if requested by a party, the Act also permits them to decide the case on the papers where no hearing is requested or if the parties have agreed to that procedure, striking a balance between efficiency and the parties’ right to be heard.

Sections 14A–14I of the Act provide a comprehensive confidentiality “code” that applies to all arbitrations seated in New Zealand, except where parties agree otherwise. Arbitrations are private and broad confidentiality requirements exist.

There are several exceptions to confidentiality, including where disclosure is:

• required by a competent regulatory body (e.g. stock exchange);
• required due to a subpoena issued by a court;
• made to a professional or advisor;
• to ensure all parties have a full opportunity to present their case;
• for the establishment or protection of legal rights in relation to third-party funding; and
• for making or prosecuting an application to court.

While the arbitration itself is usually confidential, when an application is made before the court, the presumption is that the proceedings will be public and there are only limited circumstances (in section 14F) where the court can make an order allowing the whole or part of the proceedings to be conducted privately.

12.1 Requirements as to content and form

Articles 31(1)–(4) of Schedule 1 set out the requirements for the form and contents of an award, as follows:

• an award must be in writing and signed by the tribunal;
• an award must include reasons unless otherwise agreed;
• an award must state the date and place where it is made; and
• a signed copy must be delivered to the parties.

Article 31(5) further adds: “Unless the arbitration agreement otherwise provides, or the award otherwise directs, a sum directed to be paid by an award shall carry interest as from the date of the award and at the same rate as a judgment debt”.

There are no unusual requirements for an award to be valid, and no stamp duty is payable.

12.2 Time limit

The Act does not impose a time limit for rendering an award.

12.3 Remedies

Arbitral tribunals can grant any relief or remedy available to the High Court (Article 12(1) of Schedule 1). This power was confirmed by the Supreme Court in General Distributors Ltd v. Casata Ltd [2006] 2 NZSC 8.

Generally, cost practice in New Zealand follows the principle that “costs follow the event”. AMINZ also has a Costs Protocol, which parties and arbitrators often cite in their awards. The Costs Protocol set out the principles to be applied to costs in arbitrations.

13.1 Interpretation and correction of awards

A party may request correction or interpretation of an award within 30 days of receipt of the award (Article 33 of Schedule 1).

Corrections are limited to asserted errors in computation, any clerical or typographical errors or any other error of a similar nature. The tribunal is to issue its decision on the correction application within 30 days of the request (although time may be extended).

The arbitral tribunal, on its own accord, can also correct any error within 30 days of the date of the award.

13.2 Challenge of an award

Article 34 of Schedule 1 sets out the grounds on which an award can be set aside. These grounds reflect the Model Law, and include:

• the arbitration agreement was invalid;
• a party was unable to present its case;
• the arbitral tribunal exceeded its jurisdiction;
• the arbitral procedure was not in accordance with the arbitration agreement; and
• the award is contrary to the public policy of New Zealand.

Article 34(6) clarifies that an award conflicts with public policy in New Zealand if it was induced or affected by fraud or corruption, or a breach of the rule of natural justice has occurred during the arbitral proceedings or in connection with the making of the award.

Any challenge under Article 34 must be made within three months of receipt of the award by the parties.

13.3 Recognition and enforcement proceedings

The recognition and enforcement of awards (whether made in New Zealand or overseas) is governed by Articles 35–36 of Schedule 1. These provisions reflect the Model Law and New York Convention. ICSID awards are governed by the Arbitration (International Investment Disputes) Act 1979.

There is no set time limit in which a party must apply for recognition and enforcement proceedings for an award.

13.4 Cost of enforcement

Usual court costs apply to any application to enforce an arbitral award.

13.5 Enforcement of orders of emergency arbitrators

Since the 2016 amendment of the Arbitration Act, emergency arbitrators have been included within the definition of an “arbitral tribunal” (section 2(1)). Consequently, an arbitral tribunal is defined to include an emergency arbitrator. Award is defined as a decision of the arbitral tribunal on the substance of the dispute and includes any interim, interlocutory or partial award. There have been no cases in New Zealand involving the enforcement of an emergency arbitrator’s decision.

14.1 Process for enforcing New York Convention awards

New Zealand has signed the New York Convention without reservation. Section 5(f) of the Act confirms that a purpose of the Act is to give effect to the New York Convention, which is attached as Schedule 3 to the Act.

14.2 Grounds for resisting enforcement of New York Convention awards

Article 36 sets out the grounds for resisting enforcement of an arbitral award. They reflect the provisions of the Model Law and the New York Convention, with the added clarification of what constitutes “public policy” under New Zealand law (as set out in relation to Article 34 above). The bar for establishing a breach of public policy is high (Amaltal Corporation Ltd v. Maruha (NZ) Corporation Ltd [2004] 2 NZLR 614).

14.3 Enforcing non-Convention awards

The enforcement provisions in Articles 35–36 of Schedule 1 apply to all arbitral awards, irrespective of the country in which it was made.

15.1 Applicable to counsel

New Zealand lawyers with a practising certificate are regulated by the Lawyers Conduct and Client Care Rules 2008 and must comply even if the arbitration is seated overseas.

15.2 Applicable to arbitrators

AMINZ provides a code of ethics, with which its members (who are mostly New Zealand-based arbitrators and counsel) must comply. There is a complaints and disciplinary process available if a party considers that the code has been breached.

16.1 Applicable regulatory requirements

New Zealand law has no specific laws regulating third-party funding for arbitration. The Supreme Court in Waterhouse v. Contractors Bonding Ltd [2013] NZSC 89 recognised a limited form of judicial oversight for third-party funding in litigation, permitting courts to assess the fairness of arrangements when an application is made.

16.2 Overview of the third-party funding market in New Zealand

The third-party funding market in New Zealand is relatively small, compared to similar law jurisdictions such as Canada and Australia.

New Zealand is not known for specialised arbitration, but arbitration institutions like NZDRC and AMINZ provide forms of expedited arbitration for low value arbitrations or where the parties agree.

Recent surveys of arbitration in New Zealand show that arbitration is an important part of the dispute resolution landscape. The average length of an arbitration is 10 months, and most disputes are valued between NZD 350,000 and NZD 3 million. The majority of arbitrations are domestic, conducted by sole arbitrators, and are ad hoc in nature. There is a wide range of subject matter, but most disputes relate to property matters (including leases), construction or general commercial/contract issues. The survey reports can be downloaded from www.roydenhindle.co.nz/.

Anna wishes to thank Stephen Rankin and Hannah Lane-Gould for their assistance in preparing this article.