This Country Answer reflects the state of the law as of 31 December 2012. Please refer to the explanations in the chapter entitled Preliminary Note.

A. The Contracting State and the New York Convention

1. Name of Contracting State (also specify jurisdiction(s), if relevant)

New Zealand.

2. Date of entry into force of the New York Convention

6 April 1983.

(Source: Arbitration (Foreign Agreements and Awards) Act 1982. This Act was repealed when the Arbitration Act 1996 came into force on 1 July 1997. The New York Convention has been incorporated into the Arbitration Act 1996 and appears as part of the Third Schedule to that Act.)

3. Has any reservation been made under Art. I(3) of the New York Convention regarding:

(a) reciprocity?

Although New Zealand made a reciprocity reservation under the New York Convention when it acceded to the New York Convention, that reservation has not been carried through to the Arbitration Act 1996, which provides for arbitral awards to be enforced 'irrespective of where they are made'.

(Sources: www.uncitral.org/uncitral/en/uncitral_texts/arbitration/ NYConvention_status.html; see also the Arbitration (Foreign Agreements and Awards) Act 1982, repealed when the Arbitration Act 1996 came into force on 1 July 1997; Arbitration Act 1996, Schedule 2, Art 35.)

(b) commercial relationships?

No.

4. In addition to arbitral awards made in the territory of another State, the New York Convention (Art. I(1)) also applies to arbitral awards not considered as domestic awards in the State where recognition and enforcement are sought. Are there any awards rendered in your country that are not considered as domestic awards such that the New York Convention and the answers to this Questionnaire are applicable to them?

With regard to recognition and enforcement of arbitration awards, New Zealand does not distinguish between domestic and international awards.

(Source: Arbitration Act 1996, ss. 6 and 7 and Schedule 1, Arts. 35 and 36.)

B. National sources of law

5. What specific sources of law are applicable to recognition and enforcement of foreign awards (e.g. statutes, regulations, codes, directives, other legal instruments)?

(i) Arbitration Act 1996, s. 7 and Schedule 1, Arts. 35 and 36 (the Third Schedule of the Act incorporates the New York Convention); (ii) High Court Rules (Schedule 2 to the Judicature Act 1908), Part 26-Arbitration Act 1996; (iii) District Courts Rules 2009, Part 11; (iv) judge-made law.

C. Limitation periods (time limits)

6.

(a) Is there a limitation period (time limit) applicable to the commencement of legal proceedings for recognition and enforcement of foreign awards?

Yes.

(b) If yes, what is the applicable limitation period (time limit) and when does it start running?

The applicable limitation period is 6 years from the date on which the award became enforceable by action in New Zealand. A court may waive this limitation period if considered just to do so (as this legislation has only recently been enacted, there are no cases indicating the circumstances in which a court would exercise this discretion).

(Source: Limitation Act 2010, s. 36.)

There are exceptions and extensions in the case of minority, incapacity, acknowledgement of the debt, part-payment or fraud.

(Source: Limitation Act 2010, Part 4 (ss. 44 to 48).)

D. National courts and court proceedings

7. What authority or court has jurisdiction over recognition and enforcement of foreign awards?

The District Court and the High Court have jurisdiction in respect of recognition and enforcement of foreign awards. The District Court has jurisdiction where the amount of money made payable by the award does not exceed the amount to which the jurisdiction of the District Court is limited in civil cases. That amount currently stands at NZD 200,000. The High Court has jurisdiction where the amount of money payable by the award exceeds NZD 200,000.

Where all parties to an award agree that it may be entered as a judgment, they may apply to a Registrar of the High Court (where the amount payable under the award exceeds NZD 200,000) or to a Registrar of the District Court (where the amount payable is NZD 200,000 or less), requesting the entry of the award as a judgment. This is a short-form procedure.

(Sources: High Court Rules, Rule 26.20; District Courts Rules, Rule 11.2; Arbitration Act 1996, Schedule 1, Art. 35(1).)

In all other cases, the party seeking recognition and enforcement must apply to the relevant court to have the award entered as a judgment. Where the application is to be made to a District Court, the relevant office of the District Court will be determined in accordance with Rule 3.1 of the District Courts Rules (in general terms this Rule provides for the application to be filed with the District Court closest to where the defendant resides or, if there is no defendant within the jurisdiction, then where the plaintiff selects).

Where the application is to be made to the High Court, the relevant office of the High Court will be determined in accordance with Rule 5.1 of the High Court Rules (as with the District Courts Rules, in general terms this Rule provides for the application to be filed with the High Court closest to where the defendant resides or, if there is no defendant within the jurisdiction, then where the plaintiff selects).

(Sources: District Courts Rules, Pt 6 (Originating Applications) and District Courts Rules, Rule 3.1; High Court Rules, Rules 26.22 and 5.1; Arbitration Act 1996, Schedule 1, Art. 35(1)).

8. What requirements, if any, must be met for the authority or court to accept jurisdiction over recognition and enforcement of foreign awards (e.g. domicile or assets of respondent in the jurisdiction, etc.)?

There have been no cases decided by New Zealand courts where the party resisting recognition and/or enforcement of an award has raised a jurisdictional objection. Nor have there been any cases where New Zealand courts have raised such issues of their own motion.

9. Is the first decision granting or denying recognition and enforcement obtained through ex parte or inter partes proceedings?

The first decision granting or denying recognition and enforcement is generally obtained through inter partes proceedings. It is possible to apply to the District Court or High Court for an ex parte order that the award be entered as a judgment in 'exceptional circumstances'.

(Sources: District Courts Rules, Rules 11.6 and 11.7; High Court Rules, Rules 26.22 to 26.25.)

10.

(a) Is the first decision granting or denying recognition and enforcement subject to any form of appeal or recourse?

Yes.

(b) How many levels of appeal or recourse are available against this decision?

Three where the application for enforcement is made to the District Court. Appeal to the High Court is of right. Leave would be needed to appeal to the Court of Appeal or above.

(Source: District Courts Act 1947, s. 72)

Two where the application for enforcement is made to the High Court. Appeal to the Court of Appeal is of right. Leave would be needed to appeal to the Supreme Court.

(Sources: Judicature Act 1908 ss. 66 and 67; Court of Appeal (Civil) Rules 2005, Pt 3; Supreme Court Act 2003, s. 12.)

11. What is the earliest stage in legal proceedings for enforcement of foreign arbitral awards at which a party can obtain execution against assets (i.e. party actually obtains possession of assets as opposed to simply freezing assets)?

The judgment recognizing an award may be executed against assets immediately after the court issues the order recognizing the award as a judgment (a 48-hour interval is necessary after a District Court judgment).

(Sources: District Courts Act 1947, s. 79; District Courts Rules, Pt 15; High Court Rules, Part 17, Enforcement.)

The courts have discretionary powers to stay execution against assets (the discretion applies whether the basis for execution is a domestic judgment or a domestic or foreign arbitral award). (These discretionary powers do not allow a court to stay proceedings for recognition and enforcement of an award, which would be a prior step-on the court's discretion to stay proceedings for recognition and enforcement of awards, see Q.14(b) below.)

A District Court judge may exercise discretion to stay enforcement of a District Court judgment if it appears to the judge that the party is, at that time, unable to pay the judgment.

(Source: District Courts Act 1947, s. 83.)

Any party against whom a High Court judgment has been given may apply to the High Court for a stay of execution, or for other relief against the judgment, upon the ground that a substantial miscarriage of justice would be likely to result if the judgment were executed, and the court may give relief on such terms as appear just.

(Source: High Court Rules, Rule 17.29.)

The High Court or the Court of Appeal may order a stay of execution pending the determination of an appeal.

(Source: Court of Appeal (Civil) Rules 2005, Rule 12(3).)

Where leave is granted to appeal to the Supreme Court, the Supreme Court has the same powers as the Court of Appeal with regard to ordering a stay of execution.

(Source: Supreme Court Act 2003, s. 25.)

E. Evidence required

12.

(a) What evidence must be supplied for recognition and enforcement of foreign awards (e.g. arbitral award, contract containing arbitration clause, affidavits, witness statements, etc.)?

Where the parties to the arbitration agree to have the award entered as a judgment, they may apply by letter to a District Court Registrar (where the amount payable under the award is NZD 200,000 or less) or the High Court Registrar (where the amount payable under the Award exceeds NZD 200,000). They must also satisfy the Registrar with regard to the existence of the award and the arbitration agreement leading to the award. It is usual practice to supply the court with the award and the arbitration agreement, even where the applicant is seeking entry of the award by consent.

(Sources: District Courts Rules, Rule 11.2; High Court Rules, Rule 26.20.)

Where there is no agreement, a party may apply to the relevant court for entry of the award as a judgment and must file an originating application and an affidavit in support attaching or 'proving' the duly authenticated original award or a duly certified copy and, if recorded in writing, the original arbitration agreement or a duly certified copy.

(Sources: District Courts Rules, Rules 11.4 to 11.9; High Court Rules, Rules 26.22 and 26.23; Arbitration Act 1996, Schedule 1, Art. 35(2).)

(b) Is it necessary to provide the entire document or only certain parts (e.g. entire contract or only arbitration clause)?

It is necessary to supply (i) the award in its entirety and (ii) the relevant pages of the document containing the arbitration agreement (it would also be prudent to supply the pages showing the parties and their signatures-best practice would be to provide the entire agreement).

(Source: Arbitration Act 1996, Schedule 1, Art. 35(2).)

(c) Are originals or duly certified copies required?

It is permissible to file duly certified copies.

(Source: Arbitration Act 1996, Schedule 1, Art. 35(2).)

(d) How many originals or duly certified copies are required?

Only one copy of each of the award and the agreement is required, annexed to the affidavit in support of the originating application.

(e) Does the authority or court keep the originals that are filed?

As the documents are filed as exhibits to the affidavit, they are retained by the court. Once the matter has been finally disposed of, a party can seek to have the original documents returned (provided a certified copy can be substituted in place of the original).

13.

(a) Is it necessary to provide a translation of the documents supplied?

If the award or arbitration agreement is not made in English, it is necessary to supply a duly certified translation into English.

(Source: Arbitration Act 1996, Schedule 1, Art. 35(2).)

(b) If yes, into what language?

English.

(c) Is it necessary for the translations to be certified and, if yes, by whom (official or sworn translator, diplomatic or consular agent (of which country?) or some other person)?

Yes, the translation must be 'duly certified'.

(Source: Arbitration Act 1996, Schedule 1, Art. 35(2).)

There are no specific provisions in the Arbitration Act 1996, the High Court Rules or the District Courts Rules as to who may 'duly certify' the translation of a document. Best practice in the District Court would be to follow the procedures applicable to the translation of non-English-language affidavits. See District Courts Rules, Rule 3.9 which provides that 'a non-English language affidavit must be accompanied by an affidavit by an interpreter to which is exhibited - (a) a copy of the non-English-language affidavit; and (b) the interpreter's translation of the non-English-language affidavit'. Best practice in the High Court would be to follow the rule for the translation of foreign judgments (see High Court Rule 23.8), which provides that a translation shall be 'verified by the affidavit of a person qualified as a translator from that language'. The qualifications of the translator should be set out in that affidavit.

(d) Is it necessary to provide a full translation of the documents or only a translation of certain parts (e.g. entire award or only part setting forth the decisions; entire contract or only arbitration clause)?

The applicant must provide full translations of documents required to be submitted.

(Source: Arbitration Act 1996, Schedule 1, Art. 35(2).)

F. Stay of enforcement

14.

(a) Can the authority or court stay legal proceedings for recognition and enforcement pending the outcome of an application to set aside or suspend the foreign award before the competent authority referred to in Art. V(1)(e) of the New York Convention?

Yes.

(Source: Arbitration Act 1996, Schedule 1, Art. 36(2).)

(b) On what other grounds, if any, can the authority or court stay legal proceedings for recognition and enforcement (e.g. forum non conveniens)?

Section 76(1) of the Insolvency Act 2006 provides that once a debtor is adjudicated to be bankrupt, all proceedings to recover any debts provable in the bankruptcy are halted.

(Source: Insolvency Act 2006, s. 76(1).)

Where an application has been made to appoint a liquidator for a company, the High Court or Court of Appeal may stay any application or proceeding that is pending before it in respect of that company.

(Source: Companies Act 1993, s. 247 and s. 248(1)(c).)

(c) Is the granting of a stay of legal proceedings for recognition and enforcement conditional on the provision of security?

The granting of a stay is not conditional on the provision of security. However, at the request of the party seeking recognition and enforcement, the court may order the other party to provide appropriate security.

(Source: Arbitration Act 1996, Schedule 1, Art. 36(2).)

G. Confidentiality

15.

(a) Do the documents filed in legal proceedings for recognition and enforcement form part of the public record? If yes, can any steps be taken to preserve the confidentiality of such documents?

Documents filed in proceedings under the Arbitration Act 1996 do not form part of the public record. It is not possible to access such documents unless the person is a party to the proceeding or the court specifically permits such access.

(Sources: District Courts Rules, Rules 3.18.2 and 3.18.3; High Court Rules, Rule 3.12 (2) and (3).)

(b) If there are hearings on recognition and enforcement, are such hearings confidential? If not, can steps be taken to maintain the confidentiality of the legal proceedings?

Generally speaking, court proceedings are open to the public. However, an application can be made to the judge to exclude the public from any hearings. Such applications are granted only in exceptional cases.

(Sources: TVNZ v. Langley Productions Ltd [2000] 2 NZLR 250; see also Cullen Investments Ltd v. Lancaster (HC, Auckland, M908-IM01, 27 Sept. 2002, Chambers J; Pot Hole People Ltd v. Fulton Hogan (2003) 16 PRNZ 1023; Glaister v. Amalgamated Dairies Ltd [2003] NZAR 149.)

(c) Are judgments on recognition and enforcement published? If yes, can steps be taken to remove the names of the parties or avoid publication of confidential information (such as business or State secrets)?

Yes. Steps can be taken to remove the names of the parties or to avoid publication of confidential information. This occurred in the case of O v. SM [2000] 3 NZLR 114, which was an appeal challenging an arbitral award on the basis of an error in law. The court issued orders that the names of the parties, the arbitrator, the advocates in the arbitration and the retired judge who gave assistance to the arbitrator should not be published. It is likely that the same approach would be taken in cases relating to recognition and enforcement of an award. However, as noted above, such orders will be issued only in exceptional circumstances. Judgments that have not been published and are held on the court file will be available to non-parties only if the Court expressly so permits.

(Sources: District Courts Rules, Rule 3.18.2 and 3.18.3; High Court Rules, Rules 3.12(2) and (3).)

H. Other issues

16. When, if ever, can a party obtain recognition and enforcement of interim or partial foreign awards?

The rules relating to recognition and enforcement of final awards relate to any 'decision of the arbitral tribunal on the substance of the dispute' including 'any interim, interlocutory or partial award'. Also, New Zealand has adopted the 2006 revised UNCITRAL Model Law, including the provisions relating to the recognition and enforcement of interim measures.

(Source: Arbitration Act 1996, s. 2 (Interpretation), Schedule 1, Arts. 35 and 36 and Arts. 17 L and M.)

17. When, if ever, can a party obtain recognition and enforcement of non-monetary relief in foreign arbitral awards (e.g. order requiring a party to deliver up share certificates or other property)?

As a general rule, it is possible to obtain recognition and enforcement in New Zealand of foreign awards granting non-monetary relief.

(Source: Arbitration Act 1996, Schedule 1, Art. 35, which provides that an award shall be 'enforced by entry as a judgment in terms of the award'. The courts have discretion to refuse to enforce an award granting non-monetary relief if recognition or enforcement of the award is considered to be contrary to the public policy of New Zealand. Arbitration Act 1996, Schedule 1, Art. 36(1)(b)(ii).)

18. When, if ever, can a party obtain recognition and enforcement of only part of the relief granted in foreign awards?

New Zealand legislation does not specify whether a party may obtain recognition and enforcement of only part of the relief granted in a foreign award, and case law has not addressed this question directly. In principle, if the part of the award which the party is seeking to enforce is properly severable from the relief not sought, the court is likely to allow partial enforcement of the award. Where part of the award deals with a dispute not contemplated by or not falling within the terms of the arbitration agreement, or if the award contains decisions on matters beyond the scope of the agreement, and such irregular provisions can be severed from the remainder of the award, then the court may recognize and enforce only the remainder of the award.

(Source: Arbitration Act 1996, Schedule 1, Art. 36(1)(a)(iii).)

19. When, if ever, can a party obtain recognition and enforcement of foreign awards which have been set aside by the competent authority referred to in Art. V(1)(e) of the New York Convention?

The courts have the discretion to refuse to enforce an award that has been set aside by a court of the country in which, or under whose law, the award was made. The courts are not required to refuse to recognize or enforce such an award. There have been no cases to date indicating how that discretion would be exercised.

(Source: Arbitration Act 1996, Schedule 1, Art. 36(1)(v).)

20. Are there any other procedural or practical requirements relating to recognition and enforcement of foreign awards which are worth mentioning (e.g. unusually high court costs, filing fees, stamp duties, obligation to post security as a condition for seeking recognition and enforcement, obligation to identify the assets that will be the object of enforcement, etc.)?

No.

Country Rapporteur:

Nicole Smith

Other contributors:

Wendy Miles, Campbell Walker