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Brief Counsel

Connected Asia Pacific - September 2010 issue

23 September 2010

Welcome to the September 2010 issue of Connected Asia Pacific. This Brief Counsel focuses on developments in international trade, investment and arbitration in the Asia Pacific region. It is intended to assist exporters, importers and investors from or to New Zealand make the most of the rules which increasingly regulate their cross-border activities.

If you are interested in obtaining further advice – or in simply finding out if you might benefit from an informal discussion – please contact Principal Daniel Kalderimis.

FEATURE - New Zealand-Australia Apples dispute - review of WTO Panel decision

As expected, the final report of the WTO Panel in the New Zealand-Australia Apples dispute has confirmed a resounding victory for New Zealand.  In the previous edition of Connected Asia Pacific, we discussed the prospects for a negotiated settlement and the likelihood that Australia would appeal.  On 31 August 2010 Australia filed its appeal to the Appellate Body.  New Zealand’s submissions are due before the end of September 2010 and the appeal is due to be heard in public on 11 and 12 October 2010 in Geneva, with a decision expected in November 2010.  We review the Panel’s findings and consider how the argument before the Appellate Body is likely to develop.   

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In brief

New Zealand recent decisions on international sales and arbitration

Three New Zealand court decisions helpfully illustrate the frameworks which apply when disputes arise with overseas business partners.

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Trans-Tasman Proceedings Act 2010 passed

The Trans-Tasman Proceedings Act 2010, which implements the Agreement between the Government of New Zealand and the Government of Australia on Trans-Tasman Court Proceedings and Regulatory Enforcement, passed its third reading on 24 August 2010 (in the course of which a previous edition of Connected Asia Pacific was cited in Parliament).  Australia passed its corresponding legislation in March 2010.  The new regime creates a legal framework for trans-Tasman cooperation relating to civil proceedings and will enable disputes to be resolved more efficiently and effectively.

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Australian reforms international arbitration legislation

Just as Australia has modernised its international arbitration legislation, two state courts have distanced themselves from the infamous Queensland Court of Appeal decision of Eisenwerk Hensel Bayreuth Dipl-Ing Burkhardt Gmbh v Australian Granites Limited [2001] 1 QD R 461 (Eisenwerk), one finding it was “plainly wrong”.

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New Zealand FTA round-up

New Zealand’s FTA negotiations continue apace.  The key developments are summarised herE.

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New international arbitration rules – UNCITRAL, SIAC, LCIA India

Over the past few months, there have been important revisions to two important sets of arbitration rules – the UNCITRAL Arbitration Rules, which are very commonly used for ad hoc (or non-institutional) arbitration; and the Singapore International Arbitration Centre (SIAC) Arbitration Rules, which are the leading rules used for institutional arbitration in Singapore.  In addition, anticipating an increase in arbitrations in the sub-continent, the London Court of International Arbitration (LCIA) has recently issued a set of LCIA India Arbitration Rules

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IBA taskforce on good faith and ethics in international arbitration 

In August 2010, the International Bar Association Arbitration Committee resolved to form a taskforce on counsel ethics.  The mandate of the taskforce is to consider “whether the lack of international guidelines and conflicting norms in counsel ethics undermines the fundamental protections of fairness and equality of treatment and the integrity of international arbitration proceedings”.

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