New Zealand Case Update: Securing Evidence from Foreign Witnesses (Dalian Deepwater Developer Ltd v Dybdahl [2015] NZHC 151)

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I.  INTRODUCTION

The problematic issue of compelling a local witness to give evidence in an international arbitration, outside its jurisdiction, arose before the New Zealand (“NZ”) High Court in early 2015. In Dalian Deepwater Developer Ltd v Dybdahl [2015] 3 NZLR 260, the Court assessed its own jurisdiction to do so, under section 184 of the New Zealand Evidence Act 2006 (No 69) (“EA 2006”).

It answered the question in the affirmative, and upheld its jurisdiction to order evidence to be produced in both foreign and domestic arbitral proceedings. Significantly, this includes both the examination of witnesses and the production of documents.

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II.  BACKGROUND

On 5 September 2013, Dalian Deepwater Developer Ltd (“Dalian Deepwater”) submitted a request to arbitrate with Cosco (Dalian) Shipyard Ltd (“Cosco”) to the London Court of International Arbitration (“LCIA”). The dispute, contractual in nature, arose over the construction of a drilling ship. The contract had been terminated by Dalian Deepwater on the grounds of a repudiatory breach, which Cosco denied. Dalian Deepwater filed the present application before the High Court for its assistance to compel Mr Dybdahl (the “Respondent”) give evidence in the arbitration against Cosco.

The Respondent had been the former Managing Direction of Dalian Develop Management (“DDM”), which provided advisory and management services to Dalian Deepwater. He had, in such capacity, submitted a written statement in relation to the dispute being arbitrated. However, subsequent to this, he had left his employment and begun working with Cosco independently. He thus refused to appear as a witness in the arbitration.

The present application, for a subpoena, was lodged under s 184 of the EA 2006. This reads, as follows:-

“The High Court or a Judge may exercise the powers conferred by section 185(1) if an application is made to the High Court or a Judge for an order for evidence to be obtained in New Zealand and the court or Judge is satisfied

• that the application is made to implement a request issued by or on behalf of a requesting court; and

• that any requirements prescribed in rules or regulations made under section 200 as to the form of the application and the manner in which it must be made are satisfied; and

• that the evidence to which the application relates is to be obtained for the purposes of civil proceedings which either have been instituted before the requesting court or whose institution before that court is contemplated.”

It should also be noted that (a) a High Court or a Judge may order “the examination of witnesses, either orally or in writing at any agreed time or at any specified time and place” or “for the production of documents” (see Section 185), and (b) “requesting court” is defined by the EA 2006 to mean “any court or tribunal exercising jurisdiction in a country or a territory outside New Zealand” (see Section 182).

The Respondent’s argument was two-fold. First, he claimed that, under Section 182, “tribunal” should be restricted to “tribunals exercising public authority over a geographic area”, and, second, that Article 27 of the New Zealand Arbitration Act 1996 (No 99) (“AA 1996”), which only bequeathed NZ-seated arbitrators the assistance of the Court in taking evidence, represented a deliberate decision by the legislature to deny overseas-seated arbitrators the same.

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III.  ISSUES FOR THE COURT

In essence, the Court had to decide on was whether or not the LCIA Tribunal is a tribunal that exercises jurisdiction in a country or territory outside of New Zealand.

In determining this, three (3) separate issues arose before it:-

• Whether the LCIA Tribunal was a tribunal exercising jurisdiction in a country or territory outside New Zealand;

• If so, whether the Court should exercise its discretion to make an order for the evidence of the respondent to be obtained in New Zealand for the purposes of the proceeding in the LCIA Tribunal; and

• If so, whether the Court could and should an order that the Respondent could attend the London hearing for examination remotely by audio and/or video link.

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III.  DECISION

The Court rejected the Respondent’s constructions of (a) “tribunal” under Section 182 of the EA 2006 and (b) legislative intent under Article 27 of the AA 1996.

It held the plain meaning of “requesting court” extended to private arbitral bodies. Similarly, “exercising jurisdiction” could not be limited to exercising public judicial authority, as this would unnecessarily limit the meaning of jurisdiction per se. The Court applied the interpretive principle of expressio unius est exclusio alterius to construe Section 182 of the EA 2006, and held that it was sufficient for the relevant requesting entity (in this case LCIA) to exercise jurisdiction at a place outside New Zealand. As such, LCIA fell clearly within the ambit of a “requesting court” within s 182 of the EA 2006.

Article 27 of the AA 2006 was understood to only apply in the context of arbitrations taking place within NZ, and thus had no bearing with respect to the matters before the Court.

In exercising its discretion to compel the Respondent to give evidence, the Court further held that the Respondent’s commercial relationship with Cosco was not good basis to reject Dalian Deepwater’s application. There was no suggestion that the Respondent could not comply with an order to have his evidence taken in New Zealand due to professional or personal commitments.

The Respondent was thus deposed in Christchurch, with counsel in the arbitration participating.

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IV.  CONCLUDING COMMENTS

This decision has significant implications. Overseas-seated arbitrators can now seek the assistance of New Zealand Courts to obtain evidence by other means vide Sections 184 and 185 of the EA 2006.

Although the Court is still able to exercise its own discretion in the granting of applications, arbitral tribunals may have a greater leverage by ensuring that the required criteria (such as, inter alia, establishing the necessity and relevance of the evidence with respect to the proceedings) is fulfilled.

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This article may be cited as follows: Vivian Tan, “New Zealand Case Update: Securing Evidence from Foreign Witnesses (Dalian Deepwater Developer Ltd v Dybdahl [2015] NZHC 151)” International Arbitration Asia (17 March 2016) <http://www.internationalarbitrationasia.com/nz_securing_evidence_from_foreign_witnesses>.