In a first for New Zealand, Chapman Tripp has obtained a High Court order of subpoena requiring a New Zealand-based witness to provide evidence for an international arbitration tribunal sitting in London.
New Zealand’s Arbitration Act 1996 expressly authorises the High Court to issue orders of subpoena, but only for New Zealand-seated arbitrations. The order was accordingly obtained using procedures in the Evidence Act 2006 for giving effect to letters of request from a foreign “requesting court”, which is defined as “any court or tribunal exercising jurisdiction in a country or territory outside New Zealand”. In this case, a letter of request was prepared and sent by the LCIA arbitral tribunal to the New Zealand High Court.
Chapman Tripp litigation partner Daniel Kalderimis successfully argued that a foreign arbitral tribunal qualified as a requesting court. The High Court agreed, holding that the limited scope of the Arbitration Act procedure did not preclude use of the Evidence Act procedure, and electing not to follow overseas authority – informed by the Hague Evidence Convention, to which New Zealand is not (yet) a party – holding that private arbitral tribunals are not requesting courts.
The witness’s evidence was given in the form of examination in New Zealand, from Chapman Tripp’s offices, with the LCIA arbitral tribunal and counsel in the London arbitration participating live by audio-visual link.
A copy of the High Court decision can be found here.
Chapman Tripp is the only New Zealand law firm featured in the 2015 edition of GAR 100, a guide to the international arbitration capabilities of law firms around the world.