te Heuheu Georgina: Arbitration Amendment Bill — In Committee 
te Heuheu Georgina: Arbitration Amendment Bill — In Committee 
[Volume:639;Page:9778] 
Hon GEORGINA TE HEUHEU (National) 
: 
 I am pleased to make a contribution to the Arbitration Amendment Bill and I was also quite pleased to listen to the contributions of both my own colleague Chris Finlayson and Charles Chauvel. Clearly they are two practising artists in the field— 
Hon Clayton Cosgrove 
: Artists! 
Hon GEORGINA TE HEUHEU 
: —of law and they are pretty knowledgable on the provisions that this bill deals with. 
The bill seeks to make improvements to the Arbitration Act 1996 in order to encourage the use of arbitration as a means of resolving disputes privately in New Zealand. That is always a good move possibly to save cluttering up our clogged-up judicial system. The improvements reflect the underlying themes of that Act which are party autonomy reduced involvement in the arbitral process consistency with laws in other jurisdictions and increased powers for the arbitral tribunal. 
Having listened to the previous two contributions it is clear that the bill covers changes that will try to achieve those things. Both speakers have been through the changes that the Justice and Electoral Committee made in respect of the control of the arbitral tribunal in relation to witness subpoenas and to adopting provisions of the model law on universal commercial arbitration; also in particular to interim measures and to the default procedure for the appointment of arbitrators.  
I will make just a few comments on clause 8 which substitutes a new chapter 4A into schedule 1 of the Arbitration Act. It contains articles dealing with interim measures. I was also interested to hear that eminent lawyer David Williams came before the committee to give advice on the model law and that the committee then decided not to adopt it holus-bolus. I certainly appreciated Charles Chauvel’s discussion on when the day will eventually come that we might feel mature enough in our standing constitutionally to be able to adopt this kind of model law as is. But for the moment the select committee saw fit basically to adopt the provisions but not holus-bolus the model law. 
Articles 17A and 17B deal with interim measures. These are somewhat like interim injunctions. The arbitral tribunal is given the power to grant interim measures. Article 17B(1) states the conditions that are set out for the granting of the interim measures along the lines that the tribunal must be satisfied that “(a) harm not adequately reparable by an award of damages is likely to result if the measure is not granted; and (b) the harm substantially outweighs the harm that is likely to result to the respondent if the measure is granted; and (c) there is a reasonable possibility that the applicant will succeed on the merits of the claim.” when an application for an interim measure is made. That seems very reasonable as well. In making some revisions to the Arbitration Act 1996 I think it is definitely an improvement that these provisions are included. 
Articles 17C and 17D also deal with preliminary orders where the arbitral tribunal has the power to issue preliminary orders and the conditions for issuing such orders are also included. For instance a tribunal may issue a preliminary order if it considers that prior disclosure of a request for the interim measure to the respondent risks frustrating the purpose of the measure and an applicant for a preliminary order must satisfy the tribunal of the matters specified in article 17B which deals with the conditions for granting interim measures. So all in all very reasonable amendments have been made by the committee.