Webb DuncanDr DUNCAN WEBB (Labour—Christchurch Central): Thank you Madam Deputy Speaker. Congratulations to a somewhat subdued Mr Bayly over at the other side of the House for getting his bill to this stage. As the Hon Maggie Barry said he did so with some real political acumen because certainly there were a number of tricky questions to be addressed.It must be remembered that arbitration is in a sense the privatisation of justice. I don't say that in a bad way but it's taking the dispensing of justice outside of the public realm into the private realm. There are places where that is entirely appropriate. But one of the important philosophical threads if I can say it of the select committee procedure was the discussion around the importance of having the backstop of the courts retain their open justice principle. I can entirely understand why particularly large commercial parties would want to have a pretty much closed procedure for the resolution of their commercial disputes. Indeed the court procedures themselves allow for this in some instances. But there is a very strong presumption a right presumption in favour of open justice.Mr Bayly made very persuasive arguments that didn't ultimately sway the day but very persuasive arguments that there was business to be done that we could create a market for arbitrations in New Zealand. I think the committee was rightly cautious in going down that path. Because whilst the court system is a precious resource and whilst having international arbitrations is all very nice and I absolutely encourage it I'm not sure that we should be selling our courts to international parties who have no connection with New Zealand and thereby overburden the courts again. So ultimately the suggestion that there should be a presumption of secrecy in arbitrations did not find its way past the select committee. I must say the Chief Justice had provided very firm views as entirely appropriate as the head of the courts about the role of the courts about the role of open justice. As the chair Mr Huo said that was very persuasive indeed.The other important part of this bill and I don't want to be too negative I want to explain particularly from this side of the House why the bill has not been adopted in its entirety. This was the use of arbitration in trust disputes. Now once again I am a huge advocate of alternative dispute resolution. We know that the earlier a dispute is settled at the lowest level of formality is pretty much always the best for all parties. Trust disputes pose particularly difficult problems for arbitration problems that are addressed in the Trusts Bill as Mr Bayly points out but in slightly different ways. A really difficult problem is the fact that beneficiaries may not be identified or they may not be well represented. So we've got to be really cautious about how we address arbitral provisions in trust deeds. We want to absolutely make sure that for example child beneficiaries under a trust deed aren't simply steamrolled by an arbitral procedure which is essentially dishonestly designed to side-line them. The supervisory jurisdiction of the court is of critical importance there. Miss Barry waved a wad of paper which represented some of the deliberations on this bill. The Trusts Bill magnifies that somewhat but that's where those provisions will be found.But that's not to say this is not a useful and an important bill. Mr Bayly did an outstanding job in teasing out some of the really important technical provisions. I think our arbitral law will be significantly better for his and his predecessors work in this area. One of the points was the clarification around objecting to jurisdiction. You can't just haul someone into an arbitral tribunal before an arbitrator the parties must have agreed to it and it must meet certain bare minimum thresholds. Every so often—a good example is the consumer not many people know that a consumer cannot be compelled to arbitrate unless they agree after the dispute has arisen. So there's a jurisdictional problem. In some of these situations the parties might simply let the procedure grind on without raising any jurisdictional objections.That's not a good thing because what we want in any dispute is a speedy straightforward procedurally robust dispute resolution procedure. Now what this does is require anyone who has a procedural objection to essentially raise that and pursue it promptly. So you can't simply say You've got no jurisdiction." and then sit on your hands because that's unfair on the party pursuing the dispute resolution procedure. You've got to actually pursue it.The other important point that was raised here—another great improvement—is the use of what's been called the quick-draw procedure and really its utility has been superseded by the Arbitrators' and Mediators' Institute because the quick-draw procedure is what the parties resort to where they cannot agree on the appointment of an arbitrator. It's essentially a default locus procedure whereby one party says "Well here's my chosen arbitrator. You've got seven days to object." and of course nine times out of ten the objection comes too late and it's a default appointment. Now it can be a sneaky way to appoint an arbitrator who isn't impartial. It cuts across what arbitration is supposed to be.What we do have in the Arbitrators' and Mediators' Institute—and I recognise them now as a really important and a highly respected institution—is a professional body which can now fill that appointment vacuum. Really all that's needed is to go to the institute and make that appointment so that's a much better outcome. So what we have here is some really significant improvements and I note the fact that that's had to go to the Business Committee because it is something that may not have been in the original bill.The other tidy-up is just around some tidying of the language of the Act. Mr Bayly referred to references to "schedule" when it should be "Act". Again we want to make sure it's consistent. The arbitral law sits within an international framework so it is in fact very important—particularly for international arbitration—that our domestic law tracks pretty much exactly the international framework. So that's another thing that we've done here.So look I know that this bill doesn't meet all of the expectations of its proponents but I do hope that they're happy that we had a really robust process in which we were extremely well advised not only by some of the most high-quality submissions I've seen from real specialists in the area who took an interest but also by Mr Paul Heath former High Court judge a former law commissioner and Queen's Counsel who I must say gave some of the most thorough advice but frustratingly never gave us his own view on exactly what we should do—because we were desperately looking for it on some occasions. But what we have now is a piece of legislation or a position which says "Look on policy grounds open justice is paramount."Parties can have private arbitrations but when we get to the court system the court must be free to make a decision about what information becomes closed. The court has an ability under its existing procedural rules to close some information and not other information so that is entirely up to the court. Now it may well be that this doesn't create a thriving international arbitration market but for policy reasons I think that's where we're going to sit. I'm confident that we have a judicial system which is highly respected and people will come here for the quality of our judiciary the quality of our advocates and the fact that we have an extremely transparent country and they can trust what goes on here. So well done Mr Bayly—another win for justice."