Could a BAT fly? An evaluation of the proposed Bilateral Arbitration Treaty in the New Zealand context

Abstract

International trade is imperative for economic growth in New Zealand. However, there is lack of engagement from Small to Medium Sized Enterprises given the extensive barriers they face to international markets. The Bilateral Arbitration Treaty (BAT) is one method that aims to increase both trade and access to effective justice. It would replace the default mechanism of cross border litigation with international commercial arbitration for the resolution of international business-to-business disputes. This paper assesses the worth of the BAT in the New Zealand environment considering new issues highlighted by empirical research. These potential impediments include the expense, length and confidentiality of arbitral proceedings. The time length and cost issues raise concerns with access to justice, as protected by s 27 of the New Zealand Bill of Rights Act 1990 (BORA). The confidentiality of BAT proceedings prima facie conflict with open justice and s 14 of BORA. This paper recommends an expedited procedure option and fee structure be included in the terms of the BAT, in addition to the publication of BAT awards, to allay these concerns. Ultimately, the BAT would be a worthwhile pursuit of the New Zealand government to support increasing trade.