International arbitration in the Netherlands

  1. HISTORICAL BACKGROUND
    1. Overview
    2. Review of the Netherlands Arbitration Act
    3.  Arbitration experience in the Netherlands
  2. SCOPE OF APPLICATION AND GENERAL PROVISIONS OF THE NETHERLANDS ARBITRATION ACT
    1. Scope of application
    2.  General principles
  3. THE ARBITRATION AGREEMENT
    1.  Formal requirements
    2.   Arbitrability
    3.   Separability
    4.  Legal consequences of a binding arbitration agreement
  4.  COMPOSITION OF THE ARBITRAL TRIBUNAL
    1.  Composition of the arbitral tribunal
    2.  Procedure for challenging and substituting arbitrators
    3.   Arbitrators’ fees
    4.   Arbitrator immunity
  5.   JURISDICTION OF THE ARBITRAL TRIBUNAL
    1.   Competence to rule on jurisdiction
    2.   Power to order interim measures
  6.  CONDUCT OF PROCEEDINGS
    1.  Commencing an arbitration
    2.  General procedural principles
    3.  Seat and language of arbitration
    4.  Multi-party issues
    5.  Oral hearings and written proceedings
    6.  Default by one of the parties
    7.  Taking of evidence
    8.  Disclosure of documents
    9.  Confidentiality
  7.  MAKING OF THE AWARD AND PROCEDURAL RULINGS
    1.  Choice of law
    2. Form, content and notification of an award
    3.  Settlement
    4.  Power to award interest and costs
    5.  Decision making by the arbitral tribunal
    6.   Effect of an award
    7.  Correction and interpretation of the award
    8.  Submissions
  8.  ROLE OF THE COURTS
    1.   Jurisdiction of the courts
    2.  Preliminary rulings on jurisdiction
    3.   Interim protective measures
    4.   Obtaining evidence and other court assistance
  9.  CHALLENGING AND APPEALING AN AWARD THROUGH THE COURTS
    1.  Jurisdiction of the courts
    2.   Appeal
    3.   Applications to set aside an award or to revoke an award
  10. RECOGNITION AND ENFORCEMENT OF AWARDS
    1. Domestic awards
    2.  Foreign awards
  11.  SPECIAL PROVISIONS AND CONSIDERATIONS
In the Netherlands, arbitration has generally been the most important form of dispute resolution after court litigation. This is particularly the case for the resolution of construction and numerous other trade-specific disputes, which have their own arbitration panels, such as sport-related disputes.

1. HISTORICAL BACKGROUND

1.1 Overview

1.1.1 On 1 October 1838, the legal basis for arbitration in the Netherlands was implemented in Book III of the Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering). This remained more or less unchanged until the 1986 Arbitration Act was adopted and came into force on 1 December 1986. The 1986 Arbitration Act is set out in Book IV of the Code of Civil Procedure (Netherlands Arbitration Act).

1.1.2 The Netherlands Arbitration Act was designed to promote the Netherlands 1 Please note that in this guide the term “the Netherlands” does not include the Caribbean islands within the Kingdom of the Netherlands. These islands adopted their own legislation with respect to arbitration, also based, to a large extent, upon the Model Law (1985). On 10 October 2010 the island group of the Netherlands Antilles split up. Its islands Curaçao and St. Maarten now have the constitutional status of separate countries within the Kingdom of the Netherlands, a status that nearby Aruba obtained in 1986. The islands Bonaire, St. Eustatius and Saba are special municipalities of the Netherlands, with separate legislation on arbitration, very similar to that on Curaçao, St. Maarten and Aruba.  as a seat for international arbitration. The Model Law (1985) 2 For the full text of the Model Law (1985) see http://www.uncitral.org/pdf/english/texts/arbitration/ml-arb/06-54671_Ebook.pdf.  influenced the 1986 amendments to the Netherlands Arbitration Act in view of the emphasis placed on, inter alia, party autonomy. As a result, the Netherlands Arbitration Act contains a comprehensive set of rules for arbitration in the Netherlands and some articles regulating arbitration outside the Netherlands.

1.1.3 Every arbitration that takes place in the Netherlands is subject to the Netherlands Arbitration Act, even when the parties involved are foreign. Whether or not the regulations contained in the Netherlands Arbitration Act apply is subject to the agreement of the parties and there is considerable scope for the parties to formulate their own arbitral procedure (most commonly by adopting a standard set of arbitration rules promulgated by a domestic or international arbitral institution, as appropriate).

1.1.4 Under the Netherlands Arbitration Act, in certain circumstances, the President of the District Court may be called upon to assist with the conduct of the arbitration. One such example is where the parties have failed to reach agreement on the number of arbitrators. In such a case, the President of the District Court may be petitioned by either party to make a ruling. There is further scope to make applications to the President of the District Court in other cases, such as for the appointment of an arbitrator, the removal of an arbitrator, the examination of an unwilling witness or the granting or refusal of an enforcement order. In many ways the President’s role is akin to that of an arbitral institution but in general any such interference is very limited.

1.2 Review of the Netherlands Arbitration Act

1.2.1 During the review of the Dutch Civil Procedural law in 2002, the Minister of Justice announced that the Netherlands Arbitration Act would also be reviewed. On 21 December 2006, a preliminary draft bill was presented to the Ministry of Justice by the chair of the Netherlands Arbitration Institute (NAI). 

1.2.2 There were two main reasons for reviewing the Netherlands Arbitration Act. First, after the implementation of the Netherlands Arbitration Act, the Model Law (1985) was adopted by at least 60 countries. The Netherlands is not one of those countries. Although the Model Law (1985) influenced Netherlands law on arbitration, the Netherlands Arbitration Act does not fully mirror its terms. Secondly, several important sets of institutional arbitration rules were revised since the initial implementation of the Netherlands Arbitration Act, eg the ICC Rules, the LCIA Rules and the arbitration rules of the NAI (NAI Rules).

1.2.3 On 1 January 2015 the revised Netherlands Arbitration Act entered into force.

1.3 Arbitration experience in the Netherlands

1.3.1 The Netherlands has positive experiences with arbitration. The leading arbitral institute is the NAI. In addition, there are permanent arbitration boards, for example De Raad van Arbitrage voor de Bouwbedrijven (construction) and numerous other trade-specific arbitration panels. Arbitration has even made some inroads into sport-related disputes, and the Royal Dutch Football Association arbitration board is well established. Arbitration is also widely used in IT, telecom and internet cases. ICT-Office (a Dutch trade association for 550 IT, telecom, internet and office companies) recommends that its members use general terms and conditions containing an arbitration clause based on the rules of Stichting Geschillenoplossing Automatisering. Finally, in 2000, the Dutch Centre of the ENDR, a network supported by the European Union for European arbitration, was founded.

1.3.2 While not as popular as institutional arbitration in the Netherlands, ad hoc arbitration is also available and the Netherlands Arbitration Act contains fallback provisions that may assist in conducting ad hoc arbitrations.

1.3.3 The often-cited advantages of arbitration over court proceedings, such as confidentiality, trade expertise of arbitrators, flexibility and expediency, apply with equal force to arbitration in the Netherlands.

1.3.4 Traditionally, the cost of arbitral proceedings in the Netherlands has not varied significantly from court proceedings. Costs may increase if the award is challenged in the courts, though the Netherlands Arbitration Act has curtailed the grounds for challenge.

1.3.5 In addition to arbitration, there are binding ruling procedures in the Netherlands. A binding ruling (bindend advies) by an independent third party resembles arbitration, but there is one essential difference. A binding ruling can only be set aside and declared non-binding if it is in serious conflict with reasonableness and fairness and if it would be an abuse of law if the opposite party, on the basis of the binding ruling, should wish to hold the other party to it. In other words; the binding ruling is subject to limited review on the ground that the ruling is in serious conflict with reasonableness and fairness (marginale toetsing). Another difference between the binding ruling procedures and arbitration relates to the enforceability of the award/ruling. A binding ruling has the characteristics of an agreement and is deemed to have the force of an agreement. An arbitration award may be enforced simply on the basis of an enforcement order. In the case of a binding ruling, the ruling must be brought before the District Court to request enforcement.

2. SCOPE OF APPLICATION AND GENERAL PROVISIONS OF THE NETHERLANDS ARBITRATION ACT

2.1 Scope of application

2.1.1 The Netherlands Arbitration Act is applicable if the seat of the arbitration is located in the Netherlands, whether the arbitration is ad hoc or institutional, and regardless of the nationality of the parties. Netherlands Arbitration Act, art 1073, see also para 6.3.2 below.

2.2 General principles

2.2.1 Article 17 of the Dutch Constitution provides that no party may be prevented against his or her will from being heard by a court he or she is entitled to apply to by law. Therefore, arbitration must be based on the consent of all those involved. The principle of party autonomy is enshrined in the Netherlands Arbitration Act, together with the principle of equality of the parties and the right of each party to present its case and to be heard. 4 An elaboration of this principle is given in Netherlands Arbitration Act, art 1036, para 2.  Infringement of party autonomy may result in the annulment (vernietiging) of an award. 5 Netherlands Arbitration Act, art 1065

3. THE ARBITRATION AGREEMENT

3.1 Formal requirements

3.1.1 An arbitration agreement must be evidenced in writing. 6 Ibid, art 1021.  The requirement is a statutory provision that is consistent with arbitration legislation abroad and with provisions in various treaties on arbitration.

3.1.2  Arbitrators do not have jurisdiction to hear a case in the absence of a valid arbitration agreement. Parties may agree to submit to arbitration disputes which have arisen, or which may arise, between them out of a defined legal relationship (whether contractual or not). 7 Ibid, art 1020.  

3.2  Arbitrability

3.2.1 The question as to whether a dispute is suitable for arbitration may arise in the arbitration itself if there is a challenge to the jurisdiction of the arbitrator pursuant to article 1052 of the Netherlands Arbitration Act. The issue may also arise if the case comes before an ordinary court where a party invokes an arbitration agreement to stay the court proceedings. Some disputes are not suitable for arbitration, such as certain proceedings in family law (eg divorce or adoption), bankruptcy proceedings and certain aspects of corporate law (eg the status of a limited liability company or liquidation proceedings).

3.2.2  An award rendered by an arbitral tribunal on a matter not suitable for arbitration is in conflict with public policy and may therefore be set aside.

3.3  Separability

3.3.1 The arbitration agreement is considered and decided upon as a separate agreement. 8 Ibid, art 1053. The arbitral tribunal has the power to rule on the existence and validity of the main agreement that contains the arbitration clause. Therefore, the possible invalidity of the main contract will not affect the validity of the arbitration clause that is included within the main contract. However, it is still uncertain whether an arbitration clause will survive if the main contract is considered non-existent by the arbitral tribunal.

3.4.1 A binding arbitration agreement first and foremost settles the jurisdiction of the arbitral tribunal. If a dispute within the scope of the arbitration agreement is brought before any domestic court, it will rule that it lacks jurisdiction. However, the District Court does have jurisdiction in certain procedural matters (see section 8.1 below) as well as in summary proceedings.

3.4.2 Other obvious consequences of a binding arbitration agreement are the different procedural rules and, if this is agreed upon, the choice of law that is to settle the dispute.

4. COMPOSITION OF THE ARBITRAL TRIBUNAL

4.1 Composition of the arbitral tribunal

4.1.1 The parties are free to agree on any uneven number of arbitrators. If the parties agree upon an even number of arbitrators, these arbitrators shall appoint an additional arbitrator as chair. 9 Ibid, art 1026.  In certain other countries an even number of arbitrators is permitted and the courts in the Netherlands are willing to enforce the awards of foreign arbitral tribunals in such circumstances. If the parties fail to determine the number of arbitrators or cannot reach agreement on the number of arbitrators, the President of the District Court will determine the number of arbitrators at the request of any of the parties.

4.1.2 The arbitral tribunal is appointed according to the procedure agreed between the parties. An appointment shall be made within a period of three months from the date the dispute is submitted to the arbitral tribunal, unless the arbitral tribunal has already been appointed.

4.1.3  Where a party fails to appoint an arbitrator within the three-month period, the non-defaulting party may request the President of the District Court to appoint the arbitrator. 

4.2 Procedure for challenging and substituting arbitrators

4.2.1  An arbitrator must accept his or her appointment in writing. 10 Ibid, art 1029. He or she may be relieved from the appointment upon his or her own request or by the joint decision of the parties. An arbitrator may be challenged if there is justifiable reason to doubt his or her impartiality or independence. 11 Ibid, art 1033.  

4.2.2  An arbitrator selected by one party can only be challenged by that same party for reasons that have become apparent after his or her appointment. A party cannot challenge an arbitrator appointed by a third party or by the President of the District Court if he or she has approved the appointment, unless a reason to challenge the arbitrator becomes known to him or her thereafter.

4.2.3  The general rule that an arbitrator may be challenged where there are justifiable reasons to doubt his or her impartiality or independence derives from article 10 of the UNCITRAL Arbitration Rules (1976). 12 For the full text of the UNCITRAL Arbitration Rules (1976) see http://www.uncitral.org/pdf/english/texts/arbitration/arb-rules/arb-rules.pdf.  

4.2.4  If an arbitrator is incapable of performing his or her duties, he or she shall be removed upon the request of either party or, in default thereof, by the President of the District Court. Where an arbitrator is removed, he or she shall be replaced in accordance with the same procedure as per the original appointment.

4.2.5  The arbitration is suspended during the period for replacing an arbitrator unless otherwise agreed by the parties.

4.3  Arbitrators’ fees

4.3.1 The Netherlands Arbitration Act does not include provisions regarding arbitrators’ fees. In this regard, distinction should be made between institutional arbitration and ad hoc arbitration. In the former case, the arbitral institution will have a fee schedule, 13 Please see https://www.nai-nl.org/en/nai_arbitration/costs/ for an overview.  and in the latter case, the determination of fees is left to the arbitrators and the parties. It is normal practice for arbitrators to request a deposit before the start of the arbitral proceedings.

4.4  Arbitrator immunity

4.4.1 The liability of arbitrators in the Netherlands mirrors to a large extent the liability of judges, hence an arbitrator may only be held liable in exceptional cases. 14 See among other judgments ASB Greenworld v NAI, Dutch Supreme Court, 4 December 2009, JOR 2010, 175.  Where the arbitrator has ignored fundamental principles of law, this may constitute a violation of public policy which is in turn a ground for annulling the award or refusing its enforcement order. In exceptional circumstances, the arbitrator may be liable in damages to the parties for rendering an award that is contrary to public policy and is incapable of being enforced. Furthermore, the arbitrator may be held liable if an award is filed late or if there has been excessive delay in the conduct of the proceedings.

5.  JURISDICTION OF THE ARBITRAL TRIBUNAL

5.1  Competence to rule on jurisdiction

5.1.1  The arbitral tribunal is competent to rule on its own jurisdiction in the first instance and will decide upon the existence or validity of the arbitration agreement. 15  Netherlands Arbitration Act, art 1052.

5.2  Power to order interim measures

5.2.1  The arbitral tribunal has the power to grant interim measures if the parties so agree. 16 Ibid, art 1043(b).  

6. CONDUCT OF PROCEEDINGS

6.1 Commencing an arbitration

6.1.1 In general, arbitral proceedings commence when a party to a dispute serves a written notice informing the other party that it is commencing arbitration and setting out the disputes submitted to arbitration. The parties may agree on a different procedure for initiating an arbitration. 17 Ibid, art 1036.  

6.2 General procedural principles

6.2.1 Dutch law includes a number of fundamental principles of procedural law. These principles include the equal treatment of parties and the right of each party to defend its own rights and to put forward arguments to that effect. 18 Ibid, art 1036 para 2.  The arbitral tribunal has the right to request oral submissions, to call witnesses or experts and to order the submission of documents.19 The arbitral tribunal is free to apply whatever rules of evidence it deems fit. 20 Ibid, art 1039. The arbitrators may, at their discretion, determine the relevance and weight of evidence.

6.2.2 The Netherlands Arbitration Act provides that the arbitration should be conducted in a manner agreed upon by the parties or, in the absence of such an agreement, according to the directions of the arbitral tribunal. 21 Ibid, art 1036.  

6.2.3 The way in which the arbitral proceedings are to be conducted is in most cases set out in the arbitration agreement. Where the parties have not agreed on the applicable procedure, the arbitrators determine the conduct of the proceedings (for example, directions on when submissions must be delivered).

6.3 Seat and language of arbitration

6.3.1 The Netherlands Arbitration Act contains no provisions on the language of the proceedings and of documents to be submitted to the arbitral tribunal. The applicable language is therefore determined by the parties or, in the absence of an agreement, by the arbitral tribunal. 22 Ibid, art 1036.  

6.3.2 The seat of the arbitration is usually included in the arbitration agreement, or, in absence of such agreement, the arbitral tribunal decides thereupon. 23 Ibid, art 1037. The seat of arbitration is important, as this determines whether the Netherlands Arbitration Act is applicable. Furthermore, the arbitral tribunal has to ensure that an original copy of the award is filed with the Registry of the District Court within the district where the arbitration is seated (so that an authoritative copy of the text is available for possible judicial review) if parties agree upon this by arbitration agreement. 24 Ibid, art 1058, para 1(b).  

6.4 Multi-party issues

6.4.1  The Netherlands Arbitration Act contains several provisions on multi-party issues. Any third party that claims to have an interest in the outcome of the proceedings may request to join a party to the proceedings in its claim against another party (voeging) or file a claim against both parties (tussenkomst). 25 Ibid, art 1045, para 1.   A party may also request that a third party is brought into the arbitration (vrijwaring). 26 Ibid, art 1045(a).   An important condition is that the new participant must be a party to the relevant arbitration agreement or that the new participant is willing to become a party to the arbitration agreement. The arbitral tribunal, having heard all parties, has the final say in these matters. 27 Ibid, art 1046.

6.4.2  It is also possible to consolidate two arbitrations on related subjects. The President of the District Court of Amsterdam has jurisdiction in these matters. 

6.5 Oral hearings and written proceedings

6.5.1  The arbitral tribunal has discretion as to whether there should be an oral hearing and may request an oral hearing even if the parties have elected a “documents only” format for the arbitration. The arbitral tribunal may order the parties to appear in person for the purpose of providing information or attempting to arrive at a settlement at any stage of the proceedings. 28 Ibid, art 1043, art 1038(b).  

6.5.2 The arbitral tribunal may regulate the manner in which witnesses are examined and it is entitled to examine witnesses under oath. The cross-examination of witnesses is unusual in the Netherlands; however, the parties are free to agree on a cross-examination procedure should they wish to. In the event that a witness fails to appear voluntarily, or refuses to make a statement, the arbitral tribunal may permit the requesting party (within a time limit to be determined by the arbitral tribunal) to apply to the President of the District Court requesting the appointment of a delegated judge (Rechter-Commissaris) before whom the witness will be examined. 29 Ibid, art 1041, para 2, art 1041(a).  

6.5.3 Further procedural powers of the arbitral tribunal include:

  • the appointment of an expert to deliver an opinion; 30 Ibid, art 1042.
  • the termination of an arbitration reference if a claimant fails to take certain procedural steps; 31 Ibid, art 1043(a), para 1.
  • rendering an expedited award where the respondent defaults in presenting a defence without good reason; 32 Ibid, art 1043(a), para 2.
  • ordering parties to provide documents to the arbitral tribunal; 33 Ibid, art 1040, para 2.  and/or
  • allowing third parties who have an interest in the arbitration to join as a party or be heard as an intervener. 34 Ibid, art 1045.

6.6 Default by one of the parties

6.6.1 The arbitral tribunal may terminate arbitral proceedings if the claimant, without showing good cause, does not file or substantiate its claims on time. 35 Ibid, art 1043(a).  If the respondent, without showing good cause, fails to file or substantiate a defense in time, the arbitral tribunal may make an award in respect of all claims unless a claim appears to be unjustified or unfounded. The arbitral tribunal can order the claimant to produce evidence of its claims before making this decision. 36 Ibid, art 1043(a), para 3.  

6.7 Taking of evidence

6.7.1 The arbitral tribunal shall, subject to any agreement between the parties, determine matters regarding evidence. 37 Ibid, art 1039.  

6.8 Disclosure of documents

6.8.1 The arbitral tribunal may order the disclosure of documents (often upon the request of the parties). 38 Ibid, art 1039 art 1040, para 2. There is no formal sanction for breach of this order, although the arbitral tribunal is free to draw inferences from any non-compliance. Generally, it is a matter for the parties to determine which documents they disclose. If documents are unreasonably withheld by a party, the resulting award may be revoked if the other party obtains such documents afterwards and can establish that they would have affected the decision of the arbitral tribunal. 39 Ibid, art 1068, para 1(c).  

6.9 Confidentiality

6.9.1 The Netherlands Arbitration Act does not contain any clauses on the confidentiality of the arbitral award. It has been the general practice in the Netherlands since 1919 to publish important awards as this is perceived to be in public interest. The NAI Rules state that the NAI may have awards published, provided that parties are not named and defining characteristics of the parties are left out. 40 NAI Rules, art 55. A party can nevertheless prevent publication by objecting to the NAI within a month after it has received the award. There has been some speculation about the possibility of a party to an award bringing a claim for damages against an institution that has published the award.

7. MAKING OF THE AWARD AND PROCEDURAL RULINGS

7.1 Choice of law

7.1.1 Parties often agree on the applicable law in the arbitration agreement and the arbitral tribunal will uphold this choice. This may be done in the substantive law of the contract (if a conflict arises) or in the arbitration agreement.

7.1.2  Where parties have not selected a national law, the arbitral tribunal will generally select the law of the country most closely connected with the contract between the parties (generally the law of the jurisdiction in which the principal obligations are to be performed).

7.2 Form, content and notification of an award

7.2.1 Unless the parties have agreed otherwise, if the arbitral tribunal is composed of more than one arbitrator, it shall decide by a majority. The award must be in writing and signed by the arbitrator or arbitrators. If a minority of the arbitrators refuses to sign, the other arbitrators shall record this fact in the award. 41 Netherlands Arbitration Act, art 1057, para 3.  The requirement for an award to be made in writing is mandatory. 42  It is common in arbitrations in the construction industry for a verbal decision to be made, followed by a written award. This procedure often leads to delay in receiving the written award.

7.2.2 An award must contain the reasons on which it is based (otherwise it is liable to be set aside) unless parties agreed by arbitration agreement that an award does not have to contain reasons. The extent and effect of the requirement of substantiation has been the subject of much debate. In 2004 the Supreme Court ruled that annulment of an award due to the absence of reasons is only possible if the award is rendered without any reasons at all for the decision. Annulment is not possible when the reasons and explanations for the decision are deficient or inadequate, unless such deficiency in the reasoning is so obvious that it is considered to be on a par with no reasoning at all. 43 Nannini v SFT Bank, Dutch Supreme Court 9 January 2004, JBPR 2004, 31.  Annulment is also not possible if the parties agreed in their arbitration agreement that an award does not have to contain the reasons on which it is based.

7.3 Settlement

7.3.1 Arbitrators may render an award to reflect a settlement reached by the parties. 44 Netherlands Arbitration Act, art 1069.  The recorded settlement is a valid award for the purposes of enforcement and may only be set aside if it is contrary to public policy. The settlement award must be signed by both parties.

7.4 Power to award interest and costs

7.4.1 The Netherlands Arbitration Act does not contain rules on the costs of the arbitration. An arbitral tribunal is free to award costs and has wide discretion as to how the costs are to be allocated. It is usual practice for costs to follow the event (ie costs are awarded in favor of the successful party).

7.5 Decision making by the arbitral tribunal

7.5.1  The parties may agree on the procedural aspects of how the arbitral tribunal is to render its award. Unless otherwise agreed by the parties, the arbitral tribunal decides by a majority (where there is more than one arbitrator). The appointment of a secretary (secretaris) to record the arbitral decision is quite popular in the Netherlands. The Dutch Arbitration Act does not provide rules on the appointment of a secretary. However, article 20 of the NAI Arbitration Rules stipulates that “at the request of arbitral tribunal, the administrator may appoint a lawyer as the arbitral tribunal's secretary”. The secretary ensures that the arbitral tribunal complies with certain agreed formalities.

7.6  Effect of an award

7.6.1 The final and conclusive award primarily settles the dispute between the parties. If it has become final and conclusive (kracht van gewijsde), domestic courts will recognise and enforce it (see also section 10.1 below). Parties to the arbitration agreement cannot challenge the facts as established in the award as they acquire the force of res judicata (gezag van gewijsde). 45 Ibid, art 1059.  However, other parties are not bound by the facts as established in the award.

7.7 Correction and interpretation of the award

7.7.1 The correction of a final award is permitted under the Netherlands Arbitration Act. 46 Ibid, art 1060.  The correction of an interim award is not allowed, since the omission can be repaired in a subsequently rendered interim award or in the final award. The parties are at liberty to request the correction of typographical or computational errors within three months of the award being filed. Corrections of names, addresses, date of signing and place of the award are also permitted within the same period. However, enforcement is not suspended pending resolution of a request for corrections, unless the President of the District Court, who may be called on for assistance, deems it necessary to suspend further proceedings for urgent reasons until there is a ruling on the request for corrections.

7.7.2 Where the claimant has neglected to claim interest or costs of the proceedings, an arbitral tribunal will exceed its jurisdiction if it nonetheless orders the payment of interest or costs of the proceedings. 47 Kuiken v Balkema, Amsterdam Court of Appeal 23 May 1958, NJ 1958, 465.  An award may be set aside if such a fundamental principle of procedural law is violated. 48  Netherlands Arbitration Act, art 1065, para 1.

7.8 Submissions

7.8.1 The arbitral tribunal shall also determine the timetable for submissions, unless the parties have already agreed on a timetable.

8. ROLE OF THE COURTS

8.1  Jurisdiction of the courts

8.1.1 The appropriate domestic court will rule that it lacks jurisdiction if a dispute falls within the scope of an arbitration agreement. 49 Ibid, art 1022.  However, in a number of cases, the Netherlands Arbitration Act envisages that the District Court will assist in the conduct of the arbitration. For instance, the District Court may be called upon to:

  • appoint an arbitrator; 50 Ibid, art 1027, para 3.
  • remove or replace an arbitrator; 51 Ibid, art 1029, para 4 and 5
  • examine (reluctant) witnesses; 52 Ibid, art 1041(a), para 1, art 1022(c).
  • obtain information regarding foreign law; 53 Ibid, art 1044, para 1.
  • lift, suspend or mitigate a penalty (dwangsom); 54 Ibid, art 1056.  and/or
  • grant or refuse enforcement of an award. 55 Ibid, art 1063.

8.2 Preliminary rulings on jurisdiction

8.2.1 A challenge to the jurisdiction of the domestic courts should be made prior to filling of any the formal defence on the merits. 56 Ibid, art 1022.

8.3  Interim protective measures

8.3.1 An arbitration agreement shall not preclude a party from requesting a court to grant interim measures of protection to preserve the status quo between the parties, such as to ensure that no assets will be removed of the relevant jurisdiction. A party may start summary proceedings (kort geding) before the District Court.

8.4  Obtaining evidence and other court assistance

8.4.1  The arbitral tribunal has no power to compel a witness to provide evidence to the arbitral tribunal but a delegated judge (Rechter-Commissaris) may be appointed to examine the witness. 57  Ibid, art 1041a. Attendance by the witness may be secured under Dutch Civil Procedure Law by way of a writ (dagvaarding).

8.4.2  Applications for a witness to be examined before the commencement of the arbitral proceedings should be directed to the District Court.

9. CHALLENGING AND APPEALING AN AWARD THROUGH THE COURTS

9.1 Jurisdiction of the courts

9.1.1 The application to set aside (vernietigen) or revoke (herroepen) an award should be lodged with the Court of Appeal at the seat of arbitration. This must be done within three months of the award being filed at the District Court or, if no award is filed, within three months of the award and judicial enforcement order (verlof tot tenuitvoerlegging) being served upon the other party. 58 Ibid, art 1064, 1064(a).  

9.2  Appeal

9.2.1 An appeal against an award is only possible if the parties have agreed in the arbitration agreement that an appeal is possible.

9.3  Applications to set aside an award or to revoke an award

9.3.1 The grounds on which an award may be set aside (vernietigd) are as follows:

  • non-existence of a valid arbitration agreement;
  • the arbitral tribunal was established in violation of the applicable rules;
  • the arbitral tribunal did not comply with its mandate;
  • the award was not signed or did not contain reasons in accordance with the provisions of article 1057 of the Netherlands Arbitration Act; and/or
  • the award, or the manner in which it was made, violates public policy. 59 Ibid, art 1065.

9.3.2  The grounds on which an award may be revoked (herroepen) are as follows: 

  • the award is wholly or partially based on fraud discovered after the award was made and committed during the arbitral proceedings by or with the knowledge of the other party;
  • the award is wholly or partially based on documents which, after the award was made, are discovered to have been forged;
  • after the award was made, a party obtains documents which would have had an influence on the decision of the arbitral tribunal and which were withheld as a result of the acts of the other party.

9.3.3 The Court of Appeal may suspend the set aside or revocation proceeding and order a re-opening of the arbitration proceeding before the arbitral tribunal in order to enable the arbitral tribunal to reverse the ground for annulment. 

10. RECOGNITION AND ENFORCEMENT OF AWARDS

10.1 Domestic awards

10.1.1  An award may only be enforced in the Netherlands after the President of the District Court, within whose district the place of arbitration is located, has granted leave to do so at the request of any of the parties. 60 Ibid, art 1068, para 1(c).  

10.1.2 The President of the District Court will only grant enforcement of the award after the period for challenging the award has elapsed (ie after three months of receipt of the award from the parties).

10.1.3  Enforcement of the award may only be refused by the President of the District Court if it appears plausible after a summary investigation that the award will be set aside based on one of the grounds mentioned in article 1065, or revoked based on one of the grounds mentioned in article 1068, or if a penalty for non-compliance has been wrongfully imposed. 61 Ibid, art 1062.  

10.1.4  If enforcement has been granted by the President of the District Court, the only legal remedy available for the other party is to apply for the annulment of the civil request, being a revocation of an award in the event of fraud, forgery or upon the emergence of new evidence. An application for revocation shall be brought before the Court of Appeal.

10.2 Foreign awards

10.2.1 The Netherlands is party to the New York Convention. 62  Ibid, art 1063.

10.2.2  Articles 1075 and 1076 of the Netherlands Arbitration Act govern the enforcement of foreign awards rendered in New York Convention states and non-New York Convention states. An award may be challenged on the following grounds:

  • no valid arbitration agreement under the law applicable thereto exists;
  • the arbitral tribunal was established in violation of the applicable rules;
  • the arbitral tribunal did not comply with its mandate;
  • the arbitral award is open to appeal to arbitrators or the courts in the country in which the award was made; and/or
  • the arbitral award was set aside by a competent authority of the country in which that award was made. 63 New York Convention (see CMS Guide to Arbitration, Vol II, appendix 1.1).

10.2.3 The European Court of Justice 64 Netherlands Arbitration Act, art 1076.  and the Court of Appeal 65 Eco Swiss China Time Ltd. v Benetton International NV, Case 126/97 ECR [1999] I-3055.  have ruled that an award rendered in violation of regulations governing European Union anti-trust law 66 Sesam v Betoncentrale Twente, Amsterdam Court of Appeal 12 October 2000, Tijschrift voor Arbitrage 2001, p 184. may constitute a violation of public policy.

10.2.4  An award may also be contrary to public policy if there is a violation of a fundamental principle of fair procedure, such as the denial of one party’s right to be heard by the arbitral tribunal. 67 EC Treaty, art 81.  

10.2.5  It should be noted that the Dutch requirements for a valid arbitration agreement are less stringent than those prescribed in Article II of the New York Convention. Therefore, a party seeking to enforce a New York Convention award in the Netherlands may, in appropriate circumstances, apply to the court either on the basis of article 1075 of the Netherlands Arbitration Act or the New York Convention.

11. SPECIAL PROVISIONS AND CONSIDERATIONS

11.1.1 The Netherlands Arbitration Act does not address the possibility of rectifying errors in an interim award. The Netherlands Arbitration Act also does not address the issue of dissenting opinions. Dissenting opinions are extremely rare in domestic arbitrations in the Netherlands, although it would appear to be open to arbitrators in an international arbitration to render a dissenting opinion and attach this to the award.

Brigitta-Jakic-CMS-NL
Brigitta Jakic
Advocaat
Amsterdam