22 DECEMBER NEW ZEALAND GAZETTE 4635

(d) any other remedies, rights and defences available to the parties, whether in proceedings before the courts, through arbitration, or by any other means, both under New Zealand law and the laws of any other relevant jurisdictions.

42. REFERENCE

42.1

If the respondent:

(a) consents to the reference being made; or

(b) does not consent to the reference but fails to satisfy the Business Conduct Committee that it has reasonable grounds for refusing its consent;

the Business Conduct Committee shall refer the dispute in writing to a sole arbitrator, or at its discretion to two or more arbitrators, designating who shall be the chairperson.

42.2

In these Rules, references to an “arbitrator” shall in each case include each and every arbitrator appointed under these Rules to conduct an arbitration, as the case may require.

42.3

In making the appointment referred to in Rule 42.1, the Business Conduct Committee shall have regard to all relevant circumstances including, in particular, the nature of the dispute, and the amount of the sums involved.

42.4

The Business Conduct Committee will notify the parties of the identity of the arbitrator or arbitrators as soon as practicable after his, her or their appointment.

43. PROCEDURE

43.1

An arbitrator may extend any time limit imposed under this Section of these Rules on the application of a party or otherwise, notwithstanding in exceptional circumstances that the period subject to the time limit may have expired.

43.2

An arbitrator may obtain independent legal advice in respect of the arbitration or any related matter.

43.3

The claimant and the respondent shall, within fourteen days of receiving notice of the appointment of an arbitrator under Rule 42.1, send to each other and to the Business Conduct Committee a copy of any document that they intend to use as evidence.

43.4

The arbitrator may require or allow any party to lodge with the Business Conduct Committee and every other party such other documents, statements or written information as may be considered necessary for the determination of the issues before the arbitrator.

43.5

The Business Conduct Committee will send to the arbitrator copies of all documents submitted under Rules 43.3 and 43.4.

43.6

(a) When the respondent has complied with Rule 41.3 and the period referred to in Rule 43.3 has elapsed the Business Conduct Committee shall, unless all parties to the dispute direct otherwise, serve each party to the dispute with a notice which shall specify the time, date (being a date no later than twenty-eight days after the date of the notice), and venue, for a pre-determination conference.

(b) Each party to the dispute shall attend the pre-determination conference. The Business Conduct Committee shall, after consultation with the parties, appoint a person to chair the conference.

(c) The conference chairperson shall use his or her best endeavours to resolve the dispute or to narrow any unresolved issues.

(d) If the dispute is resolved at or before the conference, or prior to the arbitration hearing, the conference chairperson may, in his or her absolute discretion order the whole or any part of the deposit paid pursuant to Rule 41.2(b) to be refunded to the applicant.

43.7

As soon as practicable after:

(a) the decision of the parties under Rule 43.6(a) that a pre-determination conference be dispensed with; or

(b) the conclusion of any pre-determination conference concerning a dispute, if the parties have not advised the Business Conduct Committee that the dispute has been resolved;

the arbitrator shall proceed with the arbitration in such manner as the arbitrator determines or the parties agree.

43.8

The arbitrator may proceed with the arbitration notwithstanding any failure by a party to comply with this Section of these Rules or with his or her directions, or to attend any meeting or hearing, provided that the arbitrator has first given the parties due notice in writing of his or her intention so to do.

43.9

The arbitrator may determine a dispute on the written statements of the parties if the claim does not exceed $25,000 and both parties consent.

43.10

A party may not be legally represented other than with the prior consent of the arbitrator.

43.11

If at any time the parties to an arbitration settle their differences they shall jointly or separately notify the Business Conduct Committee in writing forthwith. Should they fail to do so the parties shall be jointly and severally liable to the Business Conduct Committee for the costs of the Business Conduct Committee and the Company thereby incurred.

44. AWARD

44.1

If a reference is to three arbitrators the award may be by majority decision. If a reference is to two arbitrators and they are unable to agree upon their award they shall so inform the Business Conduct Committee. The Business Conduct Committee shall thereupon inform the parties that the two arbitrators are unable to agree and shall appoint a third arbitrator and the dispute shall be reheard by those three arbitrators, except to the extent that the parties may agree in writing that a rehearing is not required.

44.2

An award shall:

(a) be in writing and be signed and dated by the arbitrator;

(b) state the reasons on which it is based;

(c) contain such order for payment of the costs of the award, and of the parties, as the arbitrator thinks fit; and

(d) be sent by the arbitrator to the Business Conduct Committee as soon as reasonably practicable after it has been signed.

44.3

Upon receipt of an award, the Business Conduct Committee shall notify the parties that the award has been made and of the amount of the costs of the award. Thereupon each party may obtain a copy of the award upon payment to the Company of the amount of costs payable by that party. If a party fails to pay the costs payable by it within fourteen days of the date of notification by the Business Conduct Committee, the Company may, in its discretion, pay those costs and recover the amount from that party, without prejudice to the provisions of Rules 44.4 and 45.2.

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