COVID-19 Commercial Lease Disputes: Free Arbitration and Mediation available now

A modern conference room with a long rectangular table surrounded by swivel chairs, a large screen mounted on one wall, floor-to-ceiling windows providing natural light and views of the outdoors, and a strip of dark seating along the windows.

Update 1 July 2021: Please note that the Government funded scheme has now come to an end but you can still access NZDRC’s low cost fixed fee scheme

Many commercial tenants found their leases were inadequate to deal with the consequences of the COVID-19 restrictions.  In a welcome step, the Government has established a scheme allowing parties with a qualifying dispute to access fully subsidised arbitration or mediation services (the Scheme).

Commercial leases without solutions

For those who have commercial leases, there were questions around whether there is a right for tenants to obtain rent relief as a result of the COVID-19 lockdown restrictions and, if so, what that relief should look like. Some leases contained a clause allowing a fair proportion of rent to be suspended during an emergency situation, but it was not clear what a fair proportion might mean.  Other leases did not expressly provide for any reduction of rent in such circumstances.

When we wrote about this previously, we explained how arbitration or mediation could help parties reach a resolution.  The usefulness of alternative dispute resolution has clearly been recognised by the Government.

Qualifying disputes and eligibility criteria

The Government’s initial proposal announced in June to amend the Property Law Act 2007 to allow for COVID-19 rental disputes to be referred for arbitration or mediation has had an overhaul. The Government has now put in place a fully funded dispute resolution scheme for qualifying disputes where landlords and tenants meet the eligibility criteria.

Qualifying dispute

A dispute will qualify if:

  • the dispute it is about the payment of rent and outgoings, where the tenant has experienced a material loss of revenue during a lockdown period because of Government lockdown restrictions put in place to combat COVID-19; and
  • the payment of rent and outgoings during the relevant lockdown period has not already been the subject of an agreement or arbitral award between the parties to the dispute.

Eligibility criteria

The eligibility criteria are clearly aimed at supporting smaller, New Zealand businesses.  As a result, there are two eligibility criteria that must be met before parties can access the subsidised Scheme:

  • the landlord and tenant must have a New Zealand based business; and
  • the business must have 20 or fewer full-time equivalent staff:
    • in the case of the tenant, per lease site;
    • in the case of the landlord, in total.

Mediation and arbitration by NZDRC

NZDRC is providing fully subsidised arbitration and mediation services as part of the Scheme.  As a result, no fee will be payable by the landlord or tenant.  Those who wish to take advantage of the fully subsidised Scheme will need to apply no later than 31 March 2021.

For lease parties who do not meet the eligibility criteria, NZDRC can still offer you low cost and fixes fee arbitration or mediation services.

To learn more about your options, and the difference between mediation and arbitration download our Introductory Guide.

A judge's gavel rests on a wooden desk in the foreground, symbolizing justice. In the background, slightly out of focus, a person in a judicial robe writes on a piece of paper, possibly signing legal documents or taking notes.

How to access the NZDRC services

Whether parties choose to arbitrate or mediate, they will need to agree to engage in that process. This can be done by completing the special form agreement to arbitrate or special form agreement to mediate, copies of which may be downloaded below:

Download a template Agreement to Mediate

Download a template Agreement to Arbitrate

Once the agreement has been signed, you can apply online or, if you have anyquestions, contact the Registry team who will guide you and your advisers through the process.

Other resources you might like

If you found this article helpful and are interested in learning more, there is a wealth of other resources available on our website. We have a wide array of articles and guides on a variety of topics, each designed to provide you with a deeper understanding of the subject matter. We encourage you to explore these resources and deepen your knowledge.

A person in a blue lab coat and blue gloves uses tweezers to pick up a pill from a petri dish filled with various colorful pills. The background is a laboratory setting with scientific equipment.

Serious irregularity standard in arbitration

In Cipla Limited v Salix Pharmaceuticals Inc [2023] EWHC 910, the English High Court has confirmed a high threshold exists for successful challenges to awards on the basis that the arbitral tribunal committed serious irregularity because it failed to act fairly.
Four people in business attire are gathered around a table in a bright office. Two individuals are seated, reviewing documents with model clauses, while the other two stand, observing and discussing. A small plant and glass bottle are on the table under a skylight.

Clause and effect: the importance of well-drafted model clauses

Contracts, like disputes, come in all shapes and sizes. Most parties to a contract are keen to get the deal finalised and signed on the dotted line as quickly as possible. There isn’t always an appetite to pore over model clauses in a contract, with the parties generally agreeing that as long as there is some form of dispute resolution clause in place, all will be well. Unfortunately, if your dispute resolution model clauses are not well-drafted, this approach may come back to bite. This article will explore what a model clause is, how it operates and why it is vital to parties not only in times of strife but also in ensuring that commercial relationships can be maintained during less tumultuous times.
A close-up image of a wooden gavel with a brass band, placed on a sound block, typically used by judges in a courtroom setting. The gavel and sound block are situated on a dark surface, with two black binders visible in the background.

Limits to appeals of arbitral awards

The issue of whether there should be a right to review an arbitral award for an error of law, and if so in what circumstances may it be done, has been controversial. [1] Three recent High Court decisions have reflected that a restrictive approach to this issue is still taken, and we discuss these below.

Get in touch

Contact our team today to see how we can help

Contact us

This field is for validation purposes and should be left unchanged.