Netherlands: Key take aways from Dutch Caselaw on Arbitration Challenges

Dutch law only provides for specific limited formal grounds for challenging an arbitral award, which broadly align with international standards, including:

• an invalid arbitration agreement;
• violation of public policy;
• improper tribunal composition;
• excess of mandate;
• if the award fails to state the reasons for the decision.

Dutch courts have consistently emphasised that they should exercise restraint when considering challenges to arbitral awards and can only intervene in exceptional circumstances because these challenges are not to be used as a disguised alternative for appeal proceedings.

In this data-driven analysis, we reviewed all of the 34 court judgments that were published in the Netherlands in the period 2021–2025 in which an arbitral award was challenged (7 in 2025, 15 in 2024, 8 in 2023, 2 in 2022 and 2 in 2021). Our analysis shows how often challenges succeed, how they may affect confidentiality, and by how long a final resolution is prolonged:

The names of the parties to the arbitral proceedings have furthermore been published in 19 of the 34 court judgments mentioned above.

The data shows that five awards have initially been successfully set aside by the court between 2021 - 2025, two of which subsequently have been overruled by the Supreme Court, meaning that  only three awards were ultimately successful over a five-year period.

In the three court judgments that were not contested, an arbitral award was successfully set aside for three different reasons:

• it was established that no valid arbitration agreement was in place (Amsterdam Court of Appeal 30 August 2022, ECLI:NL:GHAMS:2022:2493);
• because of a violation of public policy (Amsterdam Court of Appeal 11 March 2025, ECLI:NL:GHAMS:2025:607);
• the defendant did not object to setting aside the arbitral award (The Hague Court of Appeal 21 December 2021, ECLI:NL:GHDHA:2021:2548).

No valid arbitration agreement in place

While the general approach of the Dutch courts is to exercise restraint when determining challenges to arbitral awards, that is not the case where it is alleged that there was no valid arbitration agreement in place. In those cases, the courts have full discretion to determine the latter issue (as a result of the fundamental right under Dutch law for parties to have access to a court of law).

In the first successful challenge (Amsterdam Court of Appeal 30 August 2022, ECLI:NL:GHAMS:2022:2493), the arbitral tribunal held that, by signing a licence agreement, the defendant was also bound to the arbitration clause contained within it. However, the court disagreed and set aside the award finding that because the defendant had consistently argued (and given reasons) that it was not a party to the arbitration agreement, the claimant could not assume that an arbitration agreement was in place.

Violation of public policy

In the case of Amsterdam Court of Appeal 11 March 2025, ECLI:NL:GHAMS:2025:607, the court found there was a violation of public policy. There were serious doubts that the arbitrator was impartial and independent as:

• the arbitrator did not allow the defendant its fundamental right to be heard;
• the award was issued without a hearing;
• the claimant alone selected the arbitrator; and
• when the defendant questioned the arbitrator’s identity, independence and impartiality, it did not receive verifiable information to address these concerns.

This is in line with the established case law of the Supreme Court (Supreme Court, 12 April 2019, ECLI:NL:HR:2019:565), which provides that the setting aside of an arbitral award due to a violation of public policy is only possible in clear-cut and obvious cases, such as this one.

Other findings

Our analysis shows that, of the grounds available under Dutch law to set aside an arbitral award, the Dutch courts are more reluctant to intervene in cases where the challenge is based on allegations that the tribunal has (i) provided insufficient reasoning for its decision in the arbitral award, or (ii) breached the scope of its mandate:

• Insufficient reasoning: Where it is alleged that the reasoning in the tribunal’s award was insufficient, a breach of a serious nature will be required, such as if a statement of reasons is missing entirely or, if one has been included in the award, thee reasons given nonetheless fail to provide a proper explanation for the tribunal’s decision.
• Breach of mandate: As to the latter ground, a breach of the tribunal’s mandate will only lead to the setting aside of an arbitral award if that breach is of a serious nature. The courts’ approach in this regard was illustrated in the case of Gemeenten v. Attero:
  • In that case, the Court of Appeal held in 2021 (The Hague Court of Appeal, 29 June 2021, ECLI:NL:GHDHA:2021:1119) that a tribunal had breached its mandate by making a decision that contradicted an award given by an earlier arbitral tribunal, violating the res judicata of the earlier award. In reaching its decision, the Court held that the second tribunal had incorrectly applied the principles of res judicata and had reached the wrong decision.
  • However, on appeal, the Supreme Court found that, in reversing the second tribunal’s findings in relation to res judicata, the Court of Appeal had gone too far. Instead, the Supreme Court decided that, for the purposes of the relevant challenge, the court only had to examine whether the second tribunal had applied the res judicata criterion, which the second tribunal had done, and not how it had done so and with what result (Supreme Court, 17 March 2023, ECLI:NL:HR:2023:422).

Arbitral awards are usually confidential, while judgments by the Dutch court are publicly accessible. This means that challenging an arbitral award will typically result in any confidentiality in the dispute being lost.

It is possible, in certain circumstances, for parties to seek protect sensitive business information through anonymisation or confidentiality orders.

However, even where that is the case, details of the parties and/or the dispute may still end up in the public domain, potentially resulting in precisely the exposure and publicity that the parties might have wished to avoid. For example, in 19 out of the 34 published judgments (56% of the cases we analysed), the parties' names were published by the court. Mostly, this occurs in disputes between a company, such as a national bank, against a sovereign state, such as in cases against Peru, Bahrain, the Republic of India, and several cases involving the Russian Federation.

However, even when party's names are anonymised, the courts may provide enough contextual detail in their judgments to make the dispute identifiable, particularly to third parties active in the same sector. For example, following a challenge to a bilateral investment treaty arbitration against the State of Mongolia, the claimant's companies were described in sufficient detail in the Dutch court’s judgment to easily trace back the natural person behind them, thus making such anonymisations futile (The Hague Court of Appeal 28 February 2023, ECLI:NL:GHDHA:2023:318).

Even though most challenges to arbitral awards are rejected, they often extend the dispute's timeline.

Our analysis shows that a challenge before the Court of Appeal in the Netherlands adds nearly three years on average, and pursuing cassation (i.e. an appeal on a point of law) before the Dutch Supreme Court can prolong the matter five years on average.

When the court considers that a ground for setting aside can be remedied, the civil proceedings are often suspended in accordance with the Dutch Code of Civil Procedure, while the matter is referred back to the arbitral tribunal. In the period of 2021–2025 this happened three times (i.e. 10% of the cases analysed). This reflects a pragmatic preference to preserve the parties' chosen forum, though at the cost of efficient resolution (as the overall duration of the dispute is further prolonged).

Our analysis confirms that Dutch courts enact restraint when deciding on a challenge, denying 82% of the challenges we examined and only setting aside awards in exceptional circumstances. Nevertheless, if an arbitral award is challenged, confidentiality cannot always be ensured and, even when unsuccessful, finality takes longer to achieve.

For parties starting arbitration the takeaway is straightforward: make sure you have a valid arbitration agreement and follow the process rigorously from the start. This helps prevent challenges to the award later and avoids problems that could arise if the award is disputed.