First Prize Winner, SCL(NZ) Construction Law Essay Prize Competition
Oscar Read
Oscar’s essay challenges industry participants to reconsider their use of preconditions to arbitration in their construction contracts. There is no one-size-fits-all approach to dispute resolution, instead, a bespoke approach is required in each case. By understanding the nature of preconditions to arbitration, parties can better incorporate them, when appropriate. Foreign jurisdictions are increasingly seeing preconditions to arbitration as matters of admissibility rather than jurisdiction. This has important implications for compliance and non-compliance that should be considered when structuring an appropriate dispute resolution clause. In the New Zealand Standard Suites, there are now two alternative dispute resolution structures: those contained NZS 3910:2013 and NZS 3910:2023. Each may be appropriate in different circumstances. To illustrate the flexibility of preconditions to arbitration, Oscar proposes a hybrid clause to balance the benefits of both NZS versions, offering parties flexibility to adapt their dispute resolution strategy to the project’s needs.