DISPUTE RESOLUTION
1 Initiating Resolution If a dispute arises
out of or in connection with the Distribution Services Agreement or this
Information Memorandum, it is expected that the Parties, using the procedures
set out in this Appendix, will make a genuine effort to resolve the dispute
without resorting to litigation. Either Party may initiate these resolution
procedures by giving written notice to the other Party.
2 Negotiations
The Party who initiates the resolution procedures must name its representative
in the negotiations when giving written notice to the other Party within
three Business Days. The Party receiving such written notice must then
give written notice to the other Party naming its representative in the
negotiations. Each representative must have authority to settle the dispute.
As soon as possible after both Parties have been so advised of each others’
representatives, the representatives must enter into negotiations to try
to resolve the dispute.
3 Alternative Dispute Resolution
3.1 If the dispute is not resolved within 5
Business Days of both Parties being advised of each other’s representatives
under Clause 2 of this Appendix, then within a further 5 Business Days,
the Parties must either:
3.1.1 initiate any available standard industry
dispute resolution procedure if such a procedure has been agreed to by
both Parties in writing with respect to the particular dispute; or
3.1.2 in the event that Clause 3.1.1 of this
Appendix does not apply, attempt to agree on a process for resolving the
dispute, such as further negotiations, mediation, or independent expert
determination, but not arbitration or litigation. Agreement on a process
is to include agreement on:
3.1.2.1 the procedure and timetable for any
exchange of documents and other information relating to the dispute;
3.1.2.2 procedural rules and a timetable for
the conduct of the selected method of proceeding;
3.1.2.3 a procedure for selection and compensation
of any neutral person who may be employed by the Parties in dispute;
3.1.2.4 whether or not the decision of any mediator
or independent expert, or other decision reached as a result of further
negotiation or other dispute resolution process, will be final and binding
on the Parties.
3.2 The Parties must maintain the confidentiality
of any documents or other information made available to, or coming to
the knowledge of, any Party in the course of negotiations or other dispute
resolution process established under this Clause 3 of this Appendix. The
Parties may use such information in settling the dispute, but not for
any other purpose. They may not rely on, or introduce as evidence in any
arbitral, judicial or other proceeding:
3.2.1 views expressed or suggestions made by
either Party or another party on a possible settlement of the dispute;
3.2.2 any admission or concession made by either
Party or another party in the course of negotiations or any other agreed
process to resolve the dispute;
3.2.3 proposals made or views expressed by a
neutral person employed by the Parties to the dispute; or
3.2.4 the fact that either Party had or had
not indicated willingness to accept a proposal for settlement.
3.3 Where a time limit is set in these alternative
dispute resolution provisions for doing something the Parties’ representatives
may agree to extend that time limit.
4 Arbitration
If:
4.1 the Parties fail to agree on a dispute resolution
process within the applicable time limit; or
4.2 using an agreed dispute resolution process
(including any dispute resolution process initiated under Clause 3.1.1
of this Appendix) the Parties fail to settle the dispute within a further
20 Business Days, subject to any agreement made pursuant to Clause 3.1.2
of this Appendix;
the Parties shall refer the dispute to arbitration in accordance with
the Arbitration Act 1996 except that clauses 4 and 5 of Schedule Two to
the Arbitration Act 1996 shall not apply.
Either Party may refer a matter to arbitration by giving to the other
Party notice in writing stating the subject matter and details of the
dispute and that Party’s desire to have the matter referred to arbitration.
The arbitration shall be by one arbitrator to be agreed upon by the Parties
or, in the event that a single arbitrator cannot be agreed, then before
two arbitrators one to be appointed by each Party and their umpire to
be appointed by the arbitrators before any arbitration proceedings commence.
If the identity of the arbitrator, or two arbitrators and umpire, remains
unsettled 30 days after the giving of notice, then an arbitrator for the
matter in dispute shall be appointed by the President for the time being
of the Arbitrators’ and Mediators’ Institute of New Zealand
Inc.
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