Phillip D. Green - Arbitration Services

By: Phillip D. Green Barrister  06-Dec-2011
Keywords: Parties, Dispute Resolution, Arbitration

In New Zealand arbitration is governed by the Arbitration Act 1996. The Act is modelled on what is known as the UNCITRAL model law. This is the Model Law on International Commercial Arbitration adopted in 1985 by the United Nations. The Law Commission in its report, NZLC R20 on arbitration recommended adapting the UNCITRAL model law so that:

  1. It could apply to all manner and types of Arbitration,

  2. In New Zealand, and,

  3. For arbitrations involving parties outside of New Zealand but where the arbitration is subject to New Zealand jurisdiction.

Parliament adopted the Law Commission’s recommendations when it passed the 1996 Act. Under the Act the arbitrator has the powers of the High Court in its civil jurisdiction to grant relief.

The comments which follow are relevant to


arbitrations under the 1996 Act.

Parties can enter into an agreement to arbitrate a future dispute in the event that it arises, or if no such agreement exists they can agree to arbitrate after the dispute has arisen. Typically commercial contracts now contain dispute resolution provisions which state that in the event of a dispute the parties shall first try and mediate the issues but if that should fail then the issue will go to arbitration.

For an example of typical wording for such contracts


Of course for construction contracts the Construction Contracts Act 2002 dispute resolution processes are likely to apply. Sometimes particular industries prescribe their own methods of dispute resolution which may include a hybrid form of arbitration. See for example the Sharemilking Agreements Order 2001.

Arbitration agreements often include a process for appointing an arbitrator when the parties cannot agree.

For examples of wording to assist the parties in having an arbitrator appointed


Where the parties cannot agree on an arbitrator, and where no process for appointment has been agreed then the Arbitration Act 1996 comes into play. It sets out the process by which the Court will appoint an arbitrator.

For a commentary on this process you are invited to read Section DA4.2.01 from

Green and Hunt on Arbitration, Law and Practice

, Thomson Brookers. This is the leading text on arbitration law and practice in New Zealand.

For more information on this text



Why Arbitration?

Arbitration offers time savings and flexibility unavailable through court process. For example the parties are given the opportunity to agree on their arbitrator who may be a person specialising in arbitration process and procedure and/or sometimes having specialist industry knowledge.

Unlike court the fact finding processes in arbitration can be much more flexible and have the potential for significant cost savings.

Privacy can be a significant advantage to the parties. The public have no right to attend an arbitration which is a private process. That privacy is further protected by the manner in which the information is treated.

Confidentiality of information is given certain protections under the Arbitration Act 1996 (‘the Act’), including where a case goes on to appeal before the High Court. Confidential information is defined under the 1996 Act in the 2007 amendment. There is a presumption in s14B of the Act that confidential information will not be disclosed by either the parties or the arbitral Tribunal. This presumption is opposite to court process where the general presumption is that evidence and pleadings will be open to the public gaze.

The level of formality introduced into the arbitration process can be varied to suit both the nature of the dispute and party needs. So, for example, a dispute could be heard at the site of the dispute. Sometimes the arbitrator can determine the dispute just by reading documents. The parties may decide that this course is appropriate without the need for witnesses to give evidence and sometimes even without the need for submissions from the parties. Usually where time saving processes are introduced it is in consultation with the arbitrator. Where the parties cannot agree process issues the arbitrator may direct process and procedure for the fair and efficient management of the dispute. Whatever process is adopted it is the duty of the arbitrator to ensure that natural justice is observed.

For an example of the parties agreeing to modify a process and how the court reviewed that process in the context of natural justice


The Act encourages the parties to tailor the arbitration process to suit their dispute. This helps to achieve flexibility and speed as compared with court process.

For examples of the topics or matters which can be varied by agreement and concerning the arbitrator’s powers, jurisdiction, party rights and process



What will happen if I am appointed as your arbitrator?

I know that time is money. It is my practice to call a preliminary meeting between the parties as quickly as possible once I am appointed. The preliminary meeting allows for the entire arbitration process to be programmed in an orderly way. It helps the parties to input into the process and establishes a timetable for things to be done. This preliminary meeting therefore helps for the smooth management of the entire arbitration process.

For an example of typical preliminary meeting agenda items


Although the agenda item list may look formidable, in fact the entire agenda can usually be run through in less than an hour. It does help if the parties are prepared and for that reason I encourage the parties to look at the agenda items before the meeting.


Cost: Arbitration

My daily arbitration rate is $4,000 plus GST per day. This sum also covers the first teleconference and the first hour of the preliminary meeting. I also charge for reasonable disbursements such as communication costs and travel – taxis, airfares and accommodation if out of Wellington. For reading, additional meetings and other preliminary work or sitting beyond 6.00pm I charge $450 per hour plus GST. Normal sitting hours are 9.30am to 5.00pm but I am flexible and try to accommodate party and counsel needs.


No charge for travel time

I do not charge travel time to get to other cities or towns for a mediation or arbitration. I do charge for reasonable disbursements such as communication costs, taxis, airfares and accommodation if out of Wellington.



I will have allocated the agreed day or days for the arbitration. Where no more than one day is allocated then if the arbitration issue is settled up to five working days prior to the fixture then no charge will be made for that allocated day. I may need to charge for preparation time and disbursements where relevant. If the matter settles within five working days of the fixture I reserve the right to charge for the allocated day and of course for any additional preparation time and disbursements incurred. I do not charge if I am able to fill the day.


What if it is all sorted in half a day?

Depending on timing I reserve the right to charge for the allocated day. I also try to treat the parties fairly and may be able to reduce my fee.


My Terms of Contract

My terms of contract for mediations and arbitrations are as set out on this website. They may only be varied by prior written and signed agreement between me and the parties. By “prior” I mean, prior to my written acceptance of appointment as mediator or arbitrator.



I am happy to receive all documents by email to my address:
My receipt of emailed documents can be taken to have been effected by my acknowledging the email on reply. I can also receive documents by fax to (04) 471 2088.
My courier address is 192 Sydney Street West, Thorndon, Wellington.
My postal address is PO Box 5048, Wellington 6145.
My Personal Assistant is Jan Page. Her email address is
Our phone contact information is (04) 473 6612.
My mobile number is 021 465 544.


The next step – Contact me?

If you would like to discuss the idea of arbitrating your dispute or would like to discuss my possible appointment you are welcome to contact me.

The information in this article was current at 02 Dec 2011

Keywords: Arbitration, Construction Contracts, Dispute Resolution, Dispute Resolution Processes, Dispute Resolution Provisions, International Commercial Arbitration, Methods of Dispute Resolution, Parties,

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By balancing legal and non-legal, age and gender experience, Phillip and Nicola draw on a broad scope of professional and life experiences, insights and skill bases, which they bring to the mediation process and the settlement table. While they both mediate individually, they prefer the co-mediation model, combining Phillip's extensive legal expertise with Nicola's interpersonal and relational skills and experience.


Phillip D. Green - Mediation Services

Prior to the agreed mediation date I generally call a second pre-mediation meeting, again usually by phone, to confirm that the parties are on track and to see whether or not they need additional input or assistance in preparing themselves for the mediation.


Phillip D. Green - Barrister

Te Whanganui a Tara Me Ona Takiwa: Report on the Wellington District: Waitangi Tribunal Report 2003 and extending to Heretaunga and the southwest coast – the district referred to in the 1840s as the Port Nicholson block. Tuwharetoa Maori Trust Board v Taupo District Council NZAR 267. Te Heu Heu v Attorney-General 1 NZLR 98 (Public Law.