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Enforcement of Interim Measures and Interim Awards in New Zealand and Australia

Enforcement of Interim Measures and Interim Awards in New Zealand and Australia. Out of step or a step ahead? 6 August 2010 Nicole Smith (nsmitharb@yahoo.co.nz). The Law. The UNCITRAL Model Law Original 1985 Version 2006 Revised Version The NZ Position Under the 1996 Act (unamended)

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Enforcement of Interim Measures and Interim Awards in New Zealand and Australia

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  1. Enforcement of Interim Measures and Interim Awards in New Zealand and Australia Out of step or a step ahead? 6 August 2010 Nicole Smith (nsmitharb@yahoo.co.nz)

  2. The Law • The UNCITRAL Model Law • Original 1985 Version • 2006 Revised Version • The NZ Position • Under the 1996 Act (unamended) • Under the 1996 Act (as amended in 2007) • The Australian Position • Under the IAA (unamended) • Under the IAA (as amended in 2010)

  3. Giant Oil Company v NZ Oil Rig Company

  4. Giant Oil Company v NZ Oil Rig Company • GOC retains NZORC to construct and maintain oil rig and well in the Gulf of Mexico • GOC or its sub-contractors to operate the rig • Contract governed by NZ law • Ad hoc arbitration, seat in Florida • Explosion on the rig, massive fire, rig sinks, well gushing oil into Gulf of Mexico • GOC claims NZORC must help stop the leak – with NZORC’s underwater robot • GOC starts ad hoc arbitration proceedings against NZORC • GOC applies for an interim order requiring NZORC to bring robot, to plug the leak • NZORC argues contract only requires routine maintenance work, not large scale repairs and robot not available as it is currently committed to a project in NZ • NZ ORC argues that moving robot to Gulf of Mexico will cause it to breach NZ contract, resulting in considerable damages and a loss of reputation • The tribunal grants the order • GOC applies to enforce the order before the NZ courts

  5. Should the NZ Courts enforce the Order? • Interim Order not an Interim Award

  6. Should the NZ Courts enforce the Order? • Interim Order not an Interim Award • Preliminary Order not an Interim Order

  7. Should the NZ Courts enforce the Order? • Interim Order not an Interim Award • Preliminary Order not an Interim Order • Tribunal suspends the Order

  8. Should the NZ Courts enforce the Order? • Interim Order not an Interim Award • Preliminary Order not an Interim Order • Tribunal suspends the Order • NZORC applies to Tribunal to suspend Order

  9. Should the NZ Courts enforce the Order? • Interim Order not an Interim Award • Preliminary Order not an Interim Order • Tribunal suspends the Order • NZORC applies to Tribunal to suspend Order • NZORC argues it was not allowed to appoint an arbitrator

  10. Should the NZ Courts enforce the Order? • Interim Order not an Interim Award • Preliminary Order not an Interim Order • Tribunal suspends the Order • NZORC applies to Tribunal to suspend Order • NZORC argues it was not allowed to appoint an arbitrator • GOC has not paid security

  11. Should the NZ Courts enforce the Order? • Interim Order not an Interim Award • Preliminary Order not an Interim Order • Tribunal suspends the Order • NZORC applies to Tribunal to suspend Order • NZORC argues it was not allowed to appoint an arbitrator • GOC has not paid security • New evidence – no obligation to do major repairs

  12. Enforcement of Interim Measures and Interim Awards in New Zealand and Australia Out of step or a step ahead? 6 August 2010 Nicole Smith (nsmitharb@yahoo.co.nz)

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