AMINZ Conference August 2009 AMINZ Conference 2009 Sally Fitzgerald Partner Russell McVeagh THE ROLE OF THE AMINZ ARBITRATION APPEALS TRIBUNAL

AMINZ Conference 2009 June 21, 2016 SLIDE 2 What is the Arbitration Appeal Tribunal? The Arbitration Appeals Tribunal (AAT) is a new appellate body which provides parties to arbitration an alternative from the traditional appeal to the High Court on questions of law. It aims to provide for efficient, confidential and high quality resolution of appeals from arbitration awards on questions of law

AMINZ Conference 2009 June 21, 2016 SLIDE 3 International Arbitration Appeal Services The following international organisations provide for similar appeal services against Arbitral awards: – The US Centre for Public Resources – ADR Chambers (Canada) – World Trade Organisation – National Grain and Feed Association (US) – Swiss Court of Arbitration for Sport; and – Grain and Feed Trade Association Arbitration (UK) No other "mainstream" arbitral institution has a body such as the AAT

AMINZ Conference 2009 June 21, 2016 SLIDE 4 What led to the creation of the AAT? Issues with clause 5 appeals to the High Court: – Lack of confidentiality – Time/ Cost – Lack of control over process

AMINZ Conference 2009 June 21, 2016 SLIDE 5 Confidentiality Key benefit of arbitration Does not apply to subsequent court proceedings- amendments to Arbitration Act 1996 in 2007 maintain presumption of "open justice" in court proceedings.

AMINZ Conference 2009 June 21, 2016 SLIDE 6 Time/ Cost Appeals to the High Court can be time consuming and costly: – Kiwi Homes Ltd v Lassen - final award in June 1998, leave to appeal determined 2 years later in June Leave to appeal refused. – Weatherhead v Deka - arbitral award issued 1997, Court of Appeal decision, June – Cullen Investments v Lancaster - 3 years of court proceedings, 5 judgments, parties settled just prior to 6 th judgment being awarded – Downer Construction v Silverfield - awards in August and November 2005, 5 applications for leave to appeal awards, 4 judgments, including Court of Appeal in All appeals dismissed

AMINZ Conference 2009 June 21, 2016 SLIDE 7 Party control over proceedings Parties are able to choose an arbitrator with particular expertise No such right exists on appealing to the High Court

AMINZ Conference 2009 June 21, 2016 SLIDE 8 The Establishment of the AAT AMINZ supported in principle and began investigating possibility of appeals tribunal in 2005 Developed by the AMINZ Rules Committee: – Hon Sir Ian Barker QC – Hon Robert Fisher QC – Mr Derek Firth – Mr Sherwyn Williams Operative as of 2009

AMINZ Conference 2009 June 21, 2016 SLIDE 9 Process The process is governed by the AMINZ Arbitration Appeal Tribunal Rules ("Rules"). Parties must agree in the arbitration agreement that there is a right of appeal under the Rules: 4.2, Appendix to Rules The right to appeal to the High Court is forfeited

AMINZ Conference 2009 June 21, 2016 SLIDE 10 Process- How is the AAT appointed? No AAT exists until appointed and constituted May be one or three members Parties have opportunity to agree to the appointment of a particular person/ persons to be the AAT for the appeal: 6.6 In the absence of agreement between the parties, the AMINZ Committee shall as soon as practicable select and appoint the member or members of the AAT: 6.7 Members are drawn from AAP

AMINZ Conference 2009 June 21, 2016 SLIDE 11 Process- What must the parties do The steps the parties must take are governed by Rule 5. Essential steps are: 1.Appellant files notice of appeal within 15 working days of award and pays fee; 2.Respondent files notice of opposition and/or cross appeal within 10 working days; 3.AAT Constituted; 4.Parties serve "concise" written submissions, together with authorities; 5.AAT sets down time and place for hearing, though can be on the papers; 6.AAT hears appeal and submits award. AAT has all powers that the High Court has (except power to submit back to original tribunal where that tribunal is unwilling or unable)

AMINZ Conference 2009 June 21, 2016 SLIDE 12 Process- Challenge to arbitrators Justifiable doubts as to impartiality or independence: 7.1 Must file challenge within 14 days of arbitrator's appointment or circumstances giving rise to challenge coming to the notice of challenging party If no withdrawal by arbitrator, AMINZ Appeals Committee determines challenge Final and binding- no appeal

AMINZ Conference 2009 June 21, 2016 SLIDE 13 Challenges for the AAT That parties will not opt for an appeal to the AAT due to lack of information on the AAT or because of a preference for the High Court appeal ? Questions over the quality of the arbitrators in comparison to the quality of High Court Judges?

AMINZ Conference 2009 June 21, 2016 SLIDE 14 Challenges- Few parties opt for AAT Will only be successful if parties incorporate it into their agreements from the outset? Not many parties likely to agree to appeal to AAT post- agreement/dispute/award?

AMINZ Conference 2009 June 21, 2016 SLIDE 15 Challenges- how to overcome An extensive marketing campaign is required to educate commercial lawyers and companies on: – The benefits of the AAT; and – The high quality membership of the Panel To encourage parties to incorporate the right to appeal to the AAT into their arbitration agreements- again need to target commercial/corporate lawyers- not litigators or arbitrators

AMINZ Conference 2009 June 21, 2016 SLIDE 16 Other issues Should we have appeals on points of law at all? Confidentiality- is it one of the key reasons arbitration is chosen?