Enforcement of Interim Measures and Interim Awards in New Zealand and Australia Out of step or a step ahead? 6 August 2010 Nicole Smith

The Law The UNCITRAL Model Law – Original 1985 Version – 2006 Revised Version The NZ Position – Under the 1996 Act (unamended) – Under the 1996 Act (as amended in 2007) The Australian Position – Under the IAA (unamended) – Under the IAA (as amended in 2010)

Giant Oil Company v NZ Oil Rig Company

GOC retains NZORC to construct and maintain oil rig and well in the Gulf of Mexico GOC or its sub-contractors to operate the rig Contract governed by NZ law Ad hoc arbitration, seat in Florida Explosion on the rig, massive fire, rig sinks, well gushing oil into Gulf of Mexico GOC claims NZORC must help stop the leak – with NZORC’s underwater robot GOC starts ad hoc arbitration proceedings against NZORC GOC applies for an interim order requiring NZORC to bring robot, to plug the leak NZORC argues contract only requires routine maintenance work, not large scale repairs and robot not available as it is currently committed to a project in NZ NZ ORC argues that moving robot to Gulf of Mexico will cause it to breach NZ contract, resulting in considerable damages and a loss of reputation The tribunal grants the order GOC applies to enforce the order before the NZ courts

Should the NZ Courts enforce the Order? Interim Order not an Interim Award

Should the NZ Courts enforce the Order? Interim Order not an Interim Award Preliminary Order not an Interim Order

Should the NZ Courts enforce the Order? Interim Order not an Interim Award Preliminary Order not an Interim Order Tribunal suspends the Order

Should the NZ Courts enforce the Order? Interim Order not an Interim Award Preliminary Order not an Interim Order Tribunal suspends the Order NZORC applies to Tribunal to suspend Order

Should the NZ Courts enforce the Order? Interim Order not an Interim Award Preliminary Order not an Interim Order Tribunal suspends the Order NZORC applies to Tribunal to suspend Order NZORC argues it was not allowed to appoint an arbitrator

Should the NZ Courts enforce the Order? Interim Order not an Interim Award Preliminary Order not an Interim Order Tribunal suspends the Order NZORC applies to Tribunal to suspend Order NZORC argues it was not allowed to appoint an arbitrator GOC has not paid security

Should the NZ Courts enforce the Order? Interim Order not an Interim Award Preliminary Order not an Interim Order Tribunal suspends the Order NZORC applies to Tribunal to suspend Order NZORC argues it was not allowed to appoint an arbitrator GOC has not paid security New evidence – no obligation to do major repairs

Enforcement of Interim Measures and Interim Awards in New Zealand and Australia Out of step or a step ahead? 6 August 2010 Nicole Smith