Adjudication under the NZDRC Adjudication Rules provides parties to a dispute with a cost-effective but robust dispute resolution process that results in a determination being made by an independent Adjudicator, typically within 35 working days.
1 Starting the process
Parties need to agree to use the process. They can do this before or after the dispute has arisen.
2 Appointment of an Adjudicator
An Adjudicator will typically be appointed within 3 Working Days.
A Claimant may serve a Reply in answer to any Response within 15 Working Days of the Commencement Date.
If a Reply is served, a Respondent may also serve a Rejoinder within 18 Working Days of the Commencement Date.
An Adjudicator’s decision is called a Determination. It will typically be issued within 25 Working Days of receipt of the Response.
Step 1 | Starting the process
To start the process, the parties need to agree to refer their dispute to Adjudication. This could be the NZDRC Model Adjudication Clause which is a clause that can easily be incorporated into an underlying agreement to refer any future dispute that arises to Adjudication.
Parties to an existing dispute that have not incorporated the NZDRC Model Adjudication Clause into a prior agreement may still agree to refer that dispute to Adjudication under the NZDRC Adjudication Rules by signing an Adjudication Agreement.
If parties are relying on an agreement to adjudicate that was entered into prior to the dispute arising, the Claimant (party intending to start the process) will need to serve a Notice of Adjudication on any other parties to put them on notice. This is not required if the parties have agreed to adjudicate after the dispute arose.
The Claimant can then start the process by applying to NZDRC. A dedicated Registrar will be appointed to the case and that Registrar will be available to support the parties, their advisors, and the Adjudicator throughout the duration of the Adjudication.
Step 2 | Appointment of an Adjudicator
NZDRC will use its best endeavours to appoint a suitably qualified and independent Adjudicator within 3 Working Days.
Any appointment will take into account any criteria agreed by the parties to the dispute, the nature and value of the dispute, the number of parties, their location, and languages, the availability of any nominees, the International Bar Association Guidelines on Conflicts of Interest in International Commercial Arbitration, and any other information provided by the parties or relevant to the case.
The parties may also, by agreement, nominate an Adjudicator for appointment. Subject to NZDRC’s assessment that the nominee is qualified, eligible and free of conflicts, NZDRC will appoint that person.
The appointment will be communicated to the parties by the Registrar and the date of that notification will be the Commencement Date. All dates for the process will run from the Commencement Date.
Step 3 | Claim
Every Adjudication starts with a Claim. The Claim must be served by a Claimant within 5 Working Days of the Commencement Date.
The Claim must include the following information:
(a) the nature and basis of the Claim;
(b) the amount of compensation claimed or other relief or remedy sought, including any claim for interest;
(c) copies of any expert reports, witness statements or other documents the Claimant relies on; and
(d) submissions on the factual and legal issues involved in the Claim, and the Claimant’s contentions as to those issues.
In essence, the Claim should provide a clear explanation as to what the Claimant seeks, why they say they are entitled on it, with reference to evidence which supports the Claim.
Step 4 | Response
A Respondent may serve a Response in answer to the Claim. A Response must be served by a Respondent after receipt of the Claim within 10 Working Days of the Commencement Date.
A Response must include the following information:
(a) what matters in the Claim are accepted or agreed;
(b) what matters are disputed, with reasons why;
(c) any defence to the Claim;
(d) copies of any expert reports, witness statements or other documents the Respondent relies on; and
(e) submission on the factual and legal issues involved in the Claim and the Response, and the Respondent’s contentions as to those issues.
The Response is an opportunity for a Respondent to clarify its position with respect to the Claim and to provide an explanation as to which matters are in dispute, what the Respondent says is the answer to those disputed matters, why they say their position is correct, with reference to evidence which supports that position.
Step 5 | Reply
A Claimant may serve a Reply in answer to any Response. A Reply must be served by a Claimant after receipt of the Response and within 15 Working Days of the Commencement Date.
If a Claimant chooses to serve a Reply, that submission must be strictly in reply to the Response. The Reply is not an opportunity to raise any new issues. A Claimant may include any supporting documents that are relevant to the Reply.
Step 6 | Rejoinder
If a Claimant serves a Reply, a Respondent may also serve a Rejoinder. A Rejoinder must be served by a Respondent after receipt of the Reply and within 18 Working Days of the Commencement Date.
If a Respondent chooses to serve a Rejoinder, that submission must be strictly in answer to the Reply. The Rejoinder is not an opportunity to raise any new issues. A Respondent may include any supporting documents that are relevant to the Rejoinder.
Step 7 | Determination
An Adjudicator’s decision is called a Determination. An Adjudicator will use reasonable endeavours to make their Determination within 25 Working Days of the date the Response is received (subject to any extensions to the timetable).
A Determination will be binding on the parties in the interim. This means that it is enforceable as a debt due unless and until the dispute is finally determined by arbitration, legal proceedings in a court of tribunal, or subsequent agreement of the parties.
In practice, in the vast majority of cases, the parties do not “re-litigate” the dispute in another forum but accept the interim Determination.
A Determination will be issued by the Adjudicator having considered all the submissions and evidence they have been provided with by the parties.
An Adjudicator must have regard to the applicable law and will decide the matter having weighed any competing evidence and by applying the applicable law to the facts of the case as they find them.
NZDRC is committed to delivering the highest quality services. To meet this objective, all determinations are submitted to a peer review process. This ensures an effective quality assurance process, reduces the chances of errors requiring correction or explanation, and provides parties with an additional layer of reassurance in the process and outcomes. The determination however remains that of the Adjudicator who is solely responsible for the decision-making process.