The Task Force's recommendations Important from a practical perspective, the Report also includes a series of recommendations banks and financial institutions should consider in tailoring the arbitration procedure to their needs (including the drafting of arbitration clauses in banking and finance documents). These include: • Enforcement: if a client and its assets may be located outside New Zealand, then parties may wish to opt for arbitration to benefit from easier enforcement of the arbitral award under the New York Convention. • Interim measures: Under most institutional arbitral rules and domestic arbitration legislation (including the Arbitration Act 1996) parties can, prior to the constitution of an arbitral tribunal, seek interim relief from national courts. Once the tribunal is in place, it has the same powers as a court to order interim relief. • Summary judgment and dispositive rulings: While in this writer's view arbitral tribunals have the inherent power to award summary judgment and make dispositive rulings provided they have given all parties the opportunity to be heard, parties can avoid any ambiguity by specifically providing for such procedures in their arbitration agreement. Some arbitral institutions (such as SIAC) have included this express power in their rules. • Emergency arbitrators: Under many institutional arbitration rules in urgent cases parties can, prior to the constitution of the arbitral tribunal, seek emergency orders for interim relief from an emergency arbitrator.
This avoids the need to resort to separate proceedings before the very courts that parties, through their agreement to arbitrate, are trying to avoid. New Zealand, for example, recently amended the Arbitration Act 1996 to confirm that interim measures granted by emergency arbitrators are enforceable upon application to a court of competent jurisdiction. Singapore and Hong Kong have done likewise. • Expertise of arbitrators: One advantage of arbitration is the ability for parties to appoint the tribunal, or otherwise specify the qualifications and expertise of the arbitrator(s). Familiarity with financial instruments is regularly of concern to banks and financial institutions, particularly in jurisdictions without specialised commercial and/or financial courts. • Confidentiality: Arbitration is private, but not necessarily confidential. If confidentiality of the existence and conduct of the arbitral proceedings and the arbitral award is of concern, parties should make specific provision in their arbitration agreement. This is often a relevant consideration for banks and financial institutions, principally for reputation and precedent reasons. • Consolidation and joinder: Many institutional arbitration rules permit consolidation of two or more arbitrations in certain circumstances. Consolidation will also be possible where two or more arbitration agreements themselves (say in related financing documents, such as a loan, a swap and a guarantee) provide expressly for consolidation of disputes arising under two or more of those instruments. Careful drafting is required to ensure that consolidation is in fact possible, practicable and the resulting award is valid. Likewise for the possible joinder of third parties. • Availability of appeal: International arbitration rules typically exclude the availability of appeals on questions of fact and law, providing finality to disputes.