1.1 Describe the prevalence of commercial arbitrations as a method of settling disputes, both domestic and international.
In the Netherlands, there has been a considerable growth in arbitrations during the last decade, both in number and in financial scope. For example, the number of arbitral proceedings initiated before the Netherlands Arbitration Institute (NAI) has risen by more than 50 per cent since 1997. A large number of arbitrations that are conducted in this country are international in character. One major international arbitration, conducted under the auspices of the NAI, concerned the dispute over the termination by Dutch air carrier KLM of its alliance with Alitalia.
It is worth noting that, in addition to the increase in arbitrations between private parties, arbitral proceedings between states and investors on the basis of bilateral investment treaties are also becoming more common. A recent example is the dispute between Dutch insurance (holding) company Eureko BV and the Republic of Poland (a partial award was published in August 2005). It is expected that the number of investment treaty arbitrations will increase further over the next few years. This type of arbitration, however, falls outside the scope of this chapter and will therefore not be discussed further here.
2.1 What are the principal sources of law and regulation relating to domestic and international arbitration? (Describe the role of federal or state laws and relevance of court decisions.)
The Dutch legal framework for arbitration is straightforward. The relevant statutory rules, governing both national and international arbitrations, can be found in the Arbitration Act 1986 (the Arbitration Act), which is incorporated in arts 1020–1077 of the Dutch Code of Civil Procedure (DCCP). The Arbitration Act has adopted a liberal approach and consists mostly of default rules, allowing ample flexibility for the specific needs of the parties. It is applicable to all arbitrations whose seat is in the Netherlands (art 1073 DCCP). In addition, it sets out rules pertaining to potential Dutch court involvement in arbitrations abroad (arts 1074–1076 DCCP).
To a large extent, the Arbitration Act provides the parties with the possibility of agreeing on the application of other rules for the conduct of arbitral proceedings. This is usually done by referring to rules of arbitration adopted by a particular institution, eg the NAI Arbitration Rules.
The role of the Dutch courts in arbitrations (national or international) is, in most cases, limited, as they are usually reluctant to intervene in agreements to arbitrate and/or in arbitral proceedings. In addition, the Arbitration Act, and eg the NAI Rules, provide for a system of arbitration that usually functions well without the courts’ interference or assistance. Courts’ decisions on arbitration issues pertain mostly to annulment actions (see section 17.2 below).
2.2 List and briefly describe relevant arbitration statutes, international treaties and conventions.
Most elements of the arbitral process are dealt with in the Arbitration Act. In addition to the substantive rules set out in arts 1020–1076 DCCP, the Arbitration Act also incorporates by reference certain provisions from other parts of the DCCP. In particular, the general procedural rules contained in other parts of the DCCP and the state courts’ case law are relevant for determining the scope of the arbitral tribunal’s authority in arbitral interim injunctive proceedings (arts 254 and 1051 DCCP) and the tribunal’s authority to levy a penalty for non-compliance with an award (see arts 611a–611i DCCP, in conjunction with art 1056 DCCP).
At the international level, the Netherlands is party to the New York Convention of 1958 and to the Convention on the Settlement of Investment Disputes between States and Nationals of Other States of 1966 (ICSID).
3.1 What are/describe the principal institutions and/or government agencies that assist in the administration or oversight of international and domestic arbitrations?
The prominent institution for arbitral proceedings in the Netherlands is the NAI (www.nai-nl.org), which administers, co-ordinates and promotes arbitral proceedings in a wide range of fields, such as construction law, contract law, joint ventures etc.
In addition, a considerable number of specialised arbitral institutions operate in the Netherlands. Examples are the Court of Arbitration for the Building Industry (www.raadvanarbitrage.nl) and the TAMARA Foundation, which specialises in transport and maritime arbitration (www.tamaraarbitration.nl).
4.1 What is the relationship between agreements to arbitrate and access to the courts? Is there a presumption of arbitrability/policy support for arbitration? Will the courts stay court actions in favour of agreements to arbitrate?
In principle, an agreement to arbitrate will result in the courts disclaiming jurisdiction. Article 1022 DCCP stipulates that a court shall declare that it has no jurisdiction if a party invokes the existence of an agreement to arbitrate, unless such agreement is invalid. The invocation of the existence of such an agreement by a party must be done prior to the submission of any substantive defence to the court. It should be noted that pursuant to art 1053 DCCP, the validity of the agreement to arbitrate should be considered and decided upon separately from that of the main contract (ie the one in which the agreement to arbitrate is embedded or to which the agreement pertains).
A more diffuse situation can arise when a party to an agreement to arbitrate wishes to obtain interim relief from a state court. Pursuant to Dutch law, any party may submit a request to the President of the relevant District Court for interim relief (assuming that the Dutch courts have jurisdiction). The request will be granted if, in the President’s opinion, such relief is immediately required in light of the interests of the parties in question. In situations where there is a valid agreement to arbitrate, a party may submit such a request notwithstanding the existence of the agreement (although that party may be referred to the tribunal if that is a realistic option under the circumstances) (art 1022(2) DCCP). See section 13.1 below on whether arbitral tribunals are authorised to grant interim relief under Dutch law.
4.2 May an arbitral tribunal rule on a party’s challenge to its own jurisdiction (‘competence-competence’)? Need a tribunal suspend its proceedings if a party seeks to test jurisdiction in the courts?
An arbitral tribunal has the authority to decide on its own competence (art 1052(1) DCCP). It is not required to suspend the arbitral proceedings if its competence is challenged in the courts. This means that it is not possible to challenge the jurisdiction of an arbitral tribunal in the courts in order to delay the arbitral proceedings. The parties are therefore required, except perhaps under exceptional circumstances, to await the tribunal’s decision on its jurisdiction. If the arbitral tribunal decides that it is competent, the arbitral proceedings will continue. After the tribunal has rendered a final award (or partial award), the parties are allowed to challenge the tribunal’s jurisdiction in the courts by means of annulment proceedings (see section 17.2 below).
5.1 Provide a selected bibliography of the most influential publications in or relied upon in the jurisdiction – books, journals, newsletters and pamphlets.
Books
A J van den Berg, R van Delden and H J Snijders Netherlands Arbitration Law (Kluwer: Deventer, 1993) G J Meijer Tekst & Commentaar Burgerlijke Rechtsvordering (Kluwer: Deventer, 2nd edn, 2005) p 1129ff W Nolen Handleiding voor Arbiters (Tjeenk Willink: Zwolle, 3rd edn, 1957) C S K Fung Fen Chung Bewijsmiddelen in het arbitraal geding (Methods of presenting evidence in arbitral proceedings) (Sdu: The Hague, 2004) P. Sanders Het Nederlandse arbitragerecht: nationaal en internationaal
(Kluwer: Deventer, 4th edn, 2001)
Journals
Tijdschrift voor Arbitrage ‘Special Tijdschrift voor Arbitrage’ (2005) Voorstellen Herziening Arbitragerecht J L W Sillevis Smit ‘Het NAI introduceert het arbitraal kort geding; een toelichting’ [1997] 4 TvA at 119–127
A J van den Berg ‘Hoe gastvrij is Nederland voor de internationale
arbitrage?’ (1990) Oration, 11 April
6.1 Are there form and/or content requirements for an enforceable agreement to arbitrate? How may they be satisfied?
The agreement to arbitrate need not fulfil any formal requirements; it can be concluded orally. However, if one of the parties to the dispute contests (in due time) the validity of the agreement, the existence of the agreement must be proven by means of a written document (art 1021 DCCP). An agreement to arbitrate can also take the form of an arbitration clause contained in general conditions. If the general conditions are accepted, either implicitly or explicitly, the arbitration clause can be considered as agreed upon (art 1021 DCCP). An agreement to arbitrate can also be part of binding articles of association or regulations.
Arbitration is not mandatory for any type of dispute.
7.2 Is arbitration prohibited for certain types of dispute (restraints of fundamental public policy)?
Certain types of disputes must be settled by the ordinary courts and cannot be resolved by means of arbitration. Arbitral proceedings may not lead to rights and obligations being established where the parties are not free to decide upon such rights and obligations (art 1020(3) DCCP). Article 1020(3) DCCP is believed to exclude eg certain disputes relating to family law, the granting of bankruptcy orders and certain intellectual property disputes. It is undecided whether the settlement of landlord/tenant disputes by means of arbitration is permitted.
8.1 May an arbitral clause be considered valid even if the rest of the contract in which it is embedded is invalid?
Article 1053 DCCP states that an agreement to arbitrate shall be considered and decided upon as a separate agreement. The arbitral tribunal has the power to decide on the validity of the contract of which the agreement to arbitrate forms part or to which the agreement relates. An arbitral award holding that the ‘basic’ contract is invalid is considered valid. Such an award, including one (if any) on costs, is enforceable under Dutch law.
9. QUALIFICATION/APPOINTMENT/LIABILITY OF ARBITRATORS
9.1 Are there specific provisions regulating the qualifications of arbitrators? Are there requirements (including disclosure) for ‘impartiality’ and ‘independence’, and do such requirements differ as between domestic and international arbitrations?
Under Dutch law, any natural person of legal capacity may be appointed as an arbitrator. Article 1023 DCCP provides that unless the parties have agreed otherwise, no person shall be precluded from appointment by reason of his or her nationality. This means that foreign arbitrators can be appointed in arbitrations in the Netherlands. The general requirement for arbitrators is that they be impartial and independent. Pursuant to art 1033 DCCP, an arbitrator may be challenged if circumstances exist that give rise to justifiable doubts as to his or her impartiality or independence. The same applies to the secretary of the arbitral tribunal.
Article 1034 DCCP provides for a duty of disclosure on the part of prospective arbitrators and secretaries. A prospective arbitrator or secretary who has reason to presume that he or she could be challenged shall disclose, in writing, the existence of the grounds for such challenge (art 1034(1) DCCP). Where the appointment has already been made, the arbitrator or secretary in question shall, if the parties have not previously been notified, immediately notify the parties of such grounds (art 1034(2) DCCP). These rules apply in both national and international arbitrations. Generally, Dutch law does not distinguish between national and international arbitrations.
In a decision of 18 October 2004, the District Court of The Hague held that where a person was serving as an arbitrator in proceedings in which one of the parties had invoked a particular ICSID award when he was at the same time acting as counsel to a party (albeit on unrelated to the parties in the first proceedings) in other proceedings in which that party was seeking the annulment of that award, his role as arbitrator in the first case was incompatible with that of counsel in the second.
9.2 Are there provisions governing the challenge or removal of arbitrators? Do the courts or other jurisdictions play/have a role in any such challenge?
An arbitrator who has agreed to serve as such may be released from his or her mandate by agreement between the parties. If the arbitrator wishes to be released from his or her mandate, the consent of the parties, or of a third person designated by the parties or, in the absence of such third person, the President of the District Court, is required (art 1029(2) DCCP). An arbitrator who has become unable to perform his or her mandate may, at the request of either party, be released from it by a third person designated by the parties or, in the absence of such third person, by the President of the District Court (art 1029(4) DCCP). The appointment of a substitute arbitrator is governed by art 1030 DCCP, which also applies in the event of the death of an arbitrator.
With respect to challenges under art 1033 DCCP as described above, the following applies. If the arbitrator was appointed by a party, that party may only challenge the arbitrator on grounds of which the party became aware after the appointment was made (art 1033(2) DCCP). If the arbitrator was appointed by a third person or by the President of the District Court, a party may not challenge the arbitrator if it acquiesced in the appointment, unless it became aware of the grounds for challenging the arbitrator after the appointment was made (art 1033(3) DCCP).
The challenge of an arbitrator and the grounds for the same must be notified in writing by the challenging party to the arbitrator in question, to the other members of the arbitral tribunal, to the other party and, if the relevant arbitrator was appointed by a third person, to that third person (art 1035(1) DCCP). The tribunal may suspend the arbitral proceedings as of the date of receipt of the notification. If the arbitrator in question does not withdraw within two weeks after the date of receipt of the notification, either party may apply to the President of the District Court to decide on the merits of the challenge. If neither party files such a request with the President of the District Court within four weeks after the date of receipt of the notification, the right to challenge the arbitrator will be barred. This also applies where the arbitration is being conducted under the rules of an arbitration institution and those rules provide for a decision on the challenge by the relevant institution or by any other third party. If the challenge fails, the arbitral proceedings, if suspended, will continue from the stage they had reached (art 1035(2) DCCP). If the arbitrator in question or one or both of the parties is domiciled or has his or her actual residence outside the Netherlands, the above periods will be six and eight weeks respectively.
9.3 Does legislation govern, or have the courts developed rules regarding the liability of arbitrators for acts related to their decision-making function?
There is, at present, no Dutch legislation on the liability of arbitrators for acts or omissions in the performance of that function. In case law it has been established that arbitrators can be held liable in this regard only if they have neglected such fundamental principles of law that the proceedings cannot be deemed to amount to a fair and impartial arbitral process (District Court The Hague, 22 June 2005, unreported). This is the same standard as that applied to judges.
It is common practice for most arbitration institutions to exclude liability for their arbitrators (see eg art 66 NAI Rules). It has been suggested that a provision be included in the Arbitration Act to the effect that an arbitrator or secretary cannot be held liable for acts or omissions in relation to the arbitration, except in the event of gross negligence or intent. This has not been incorporated in the Arbitration Act (yet).
10. PARTY REPRESENTATION
10.1 Are there particular qualification requirements for representatives (‘counsel’) appearing in the jurisdictions?
Each party may appear before the arbitral tribunal in person, be represented by a practising lawyer, or be represented by any other person expressly authorised in writing for this purpose (art 1038 DCCP). It is not necessary for a practising lawyer to be expressly authorised, as his or her authority is presumed.
The NAI Rules provide that if a party is to be represented at a hearing by a practising lawyer or by an authorised representative, that party must notify the arbitral tribunal and the other party of this in writing as soon as possible after the date of the hearing has been determined. However, if the request for arbitration or the short answer was filed by a practising lawyer or by an authorised representative, the notification will be considered to have taken place (art 21 NAI Rules).
11. PLACE OF ARBITRATION/PROCEDURES
11.1 Are there provisions governing the place (seat) of arbitration, or any requirement for arbitral proceedings to be held at the seat?
The seat of the arbitration determines whether Dutch procedural law applies. If the seat of the arbitration is within the territory of the Netherlands, the Arbitration Act applies. The seat of arbitration is determined by agreement between the parties or, failing such agreement, by the arbitral tribunal (art 1037(1) DCCP).
The tribunal may hold hearings, deliberate, hear witnesses etc outside the Netherlands (art 1037(3) DCCP).
11.2 Are specific procedures mandated in particular cases, or in general?
Dutch arbitral proceedings are conducted in such manner as agreed between the parties or, in the absence of such agreement, as determined by the arbitral tribunal (art 1036 DCCP). There are no specific procedures mandated. Both the Arbitration Act and the NAI Rules contain provisions setting out basic rules on the procedure to be followed. However, these rules may, to a large extent, be set aside or amended by the parties.
12. EVIDENCE GATHERING
12.1 What is the general approach to the gathering and tendering of evidence at the pleading stage and at the hearing stage (production, discovery, privilege, use of witness statements etc)? Are there differences between domestic and international arbitrations?
The arbitral tribunal is not bound by the rules of evidence that apply to ordinary court proceedings (art 1039(5) DCCP).
The tribunal may, at the request of either party, allow a party to produce witnesses or experts (art 1039(3) DCCP). It has a discretionary power to hear witnesses or experts. As the tribunal is free to apply the rules of evidence of its choice, it is left to the tribunal’s discretion to decide on matters of privilege.
The tribunal has the power, either ex officio of its own accord or at the request of the parties, to order the production of documents (art 1039(4) DCCP), but does not have the power to compel parties to produce them. If a party is reluctant to produce documents, the tribunal may draw from this the conclusions it deems appropriate.
The concept of discovery does not exist under Dutch law. However, the Arbitration Act provides for the authority of the tribunal to order the production of certain (to be identified) documents (art 1039(4) DCCP). Furthermore, the IBA Rules on the Taking of Evidence in International Commercial Arbitration can be, and increasingly are, applied in order to agree upon a ‘compromise’ between the different approaches to this issue adopted by various legal systems.
There are no strict rules on the proper place and time for submitting evidence; tribunals customarily agree with the parties upon the procedure for the tendering of evidence. In this regard, the applicable law(s) and the usage (if any) between the parties is/are taken into consideration.
12.2 What powers of compulsion or court assistance are there for arbitrators to require attendance of witnesses or production of documents, either prior to or at the substantive hearing? Is there a difference between domestic and international tribunals or as between parties and non-parties? Do special provisions exist for arbitrators appointed pursuant to international treaties (ie bilateral or multilateral investment treaties)?
At the request of either party, or at its own initiative, the arbitral tribunal may allow parties to examine witnesses (art 1039(3) DCCP). Pursuant to art 1041(1) DCCP (and also art 29(1) NAI Rules), the tribunal determines the date, time and place of the hearing, as well as the manner in which it is to be conducted.
If a witness does not appear voluntarily or, having appeared, refuses to give evidence, the tribunal may allow a party who so requests, within a period of time to be determined by the tribunal, to petition the President of the District Court to appoint a judge before whom the examination of the witness can take place. If held, the examination will take place in the same manner as in ordinary court proceedings. The judge may compel the witness to appear and to give evidence (subject to any applicable rules on privilege). The arbitrator(s) must be given the opportunity, by the clerk of the relevant District Court, to attend the examination (art 1041(2) DCCP). The tribunal may suspend the arbitral proceedings until the day on which it has received the record of the examination (art 1041(4) DCCP). These rules apply in both national and international arbitrations and irrespective of the basis on which the arbitrators were appointed (except to the extent that international law or an agreement between the parties, if applicable, dictates otherwise). On the production of documents, see section 12.1 above.
13. INTERIM MEASURES/ROLE OF THE TRIBUNAL
13.1 Are there special provisions relating to the granting of interim and preliminary relief? Have the courts recognised and/or limited any such authority? Do the courts themselves play a role in interim relief in arbitration proceedings?
The parties may agree to empower the arbitral tribunal or its chair to render an award granting provisional relief in summary proceedings. In such a case, the tribunal or its chair may render such an award within the limits imposed by art 254(1) DCCP (which governs the power of state courts to grant interim relief). An agreement to the above effect will generally be deemed to have been concluded if eg the parties have agreed to the application of the NAI Rules, which contain special provisions relating to immediate provisional measures. The NAI Rules distinguish three situations.
First, art 37 NAI Rules authorises the arbitral tribunal to, at the request of a party, render an award in summary arbitral proceedings at any stage of the proceedings. The tribunal is authorised to do so if it determines that, considering the interests of the parties, an immediate provisional measure is urgently required. The tribunal’s power to render an award in summary arbitral proceedings is similar to that of the President of a District Court to render judgment in summary proceedings. An arbitral provisional award in summary proceedings will not prejudice the tribunal’s final decision with regard to the merits of the case. The award will be regarded as an arbitral award that can be executed in the same way as ‘ordinary’ arbitral awards can (ie after obtaining leave for enforcement from the President of the competent District Court: arts 1051(3) and 1062 DCCP).
Secondly, art 38 NAI Rules stipulates that the tribunal may, at the request of a party and by means of an order, provisionally make any decision or take any measure it deems useful or necessary regarding the object of the dispute.
Thirdly, the NAI Rules provide for the interesting possibility of initiating summary arbitral proceedings also in situations where the arbitrators have not yet been appointed in the ‘main’ arbitral proceedings (arts 42a–42o NAI Rules – summary arbitral proceedings). Such proceedings, which could result in an enforceable award within a few weeks, are open to parties who have agreed to the application of the NAI Rules in cases in which the seat of the arbitration is located within the Netherlands.
14. TAXATION OF ARBITRATORS’ FEES
14.1 Does the state, or any of its sub-divisions, purport to tax domestically the fees of foreign arbitrators conducting hearings in the state? Is there a difference if the arbitration is ‘seated’ in the state or elsewhere?
Fees paid to arbitrators conducting proceedings in the Netherlands are in principle subject to VAT. In addition, arbitrators who are Dutch taxpayers must report all fees received to the Dutch tax authorities. Foreign arbitrators may be subject to their own country’s tax regime regarding the fees received.
15. DEFAULT PROCEEDINGS
15.1 Are there provisions governing a tribunal’s ability to determine the controversy in the absence of a party who, on appropriate notice, fails to appear at or seek adjournment of the arbitral proceedings?
Pursuant to art 1040(1) DCCP, the arbitral tribunal may terminate the proceedings by means of an arbitral award if the claimant, in spite of having had an adequate opportunity to do so, fails to submit a statement of claim without showing good cause. Similarly, if the respondent, without showing good cause and in spite of having been given an adequate opportunity to do so, fails to submit a defence, the tribunal may render an award forthwith. In both cases, the award will grant the claimant’s claims unless the tribunal considers them to be unlawful or unfounded (art 1040(3) DCCP). Before rendering an award, the tribunal may require the claimant to produce additional evidence in support of its allegations (art 1040(3) DCCP).
16. THE ARBITRAL AWARD
16.1 Must an award take any particular form, eg in writing, signed, dated, place, the need for reasons, delivery etc?
Article 1057 DCCP sets out the requirements that all arbitral awards rendered in the Netherlands must meet. The award must be in writing and be signed by the arbitrator(s) (art 1057(2) DCCP). If a minority of the arbitrators refuse to sign the award, the other arbitrators must make a note of this beneath the award and their signatures. This additional note must be signed by those other arbitrators. In general, arbitral awards must in any event set out: (a) the name(s) and address(es) of the arbitrator(s); (b) the names and addresses of the parties; (c) the date of the award; (d) the place of the award; and (e) the reasons for the decision (art 1057(4) DCCP). This last requirement need not be fulfilled if the award concerns merely the determination of the quality or condition of goods or the recording of a settlement by the parties (art 1057(4)(e) in conjunction with arts 1020(4)(a) and 1069 DCCP). The tribunal must send a copy of the award to the parties. The original of the award must be deposited with the registry of the District Court within whose district the seat of the arbitration is located (art 1058(1) DCCP).
16.2 Are there limits on arbitrators’ powers to fashion appropriate remedies, eg punitive or exemplary damages, rectification, injunctions, interest and costs?
The arbitrators are limited by the claim(s) or counterclaim(s) of the parties. The tribunal may award interest and costs if claimed, and may issue injunctions. Punitive or exemplary damages cannot be awarded under Dutch law.
17. RECOURSE FROM AN AWARD
17.1 Are there provisions governing modification, clarification or correction of an award?
Pursuant to art 1060 DCCP, a party may request, in writing, that the arbitral tribunal rectify any manifest computing or clerical error in the award. The request must be made no later than 30 days after the deposit of the award with the District Court registry. The same applies in the event of a mistake or omission in relation to the formal requirements that the award must meet, listed in art 1057(4)(a)–(d) DCCP (see section 16.1 below).
Either party may, within 30 days after the date of deposit of the award with the District Court registry, request the tribunal to render an additional award if the tribunal failed to decide one or more matters that were submitted to it (art 1061(1) DCCP). The tribunal must give the parties an opportunity to be heard before deciding on such a request (art 1061(3) DCCP).
17.2 May an award be appealed to or set aside by the courts? If so, on what grounds and by what procedures?
An application for setting aside the award may in principle be submitted as soon as the award has acquired the force of res judicata, which is usually on the day on which it is rendered (art 1059(1) DCCP).
Setting aside the award can take place only on one or more of the following grounds, listed in art 1065(1) DCCP. These grounds do not include any review by the court as to points of fact or law determined in the award (except perhaps when considering the ‘public order’, discussed below). The grounds for setting aside an arbitral award are:
The time limit for an application for revocation is three months after the fraud or forgery has become known or the relevant new documents have been obtained by a party.
18. ENFORCEMENT OF AWARD
18.1 What are the procedures and standards for enforcing an award? Is there a difference between ‘domestic’ and ‘non-domestic’ awards?
Enforcement in the Netherlands of a final or partial final award that (a) is not open to appeal to a second arbitral tribunal (see section 20.1 below), or (b) has been declared provisionally enforceable, or (c) has been rendered on arbitral appeal, can take place after the President of the competent District Court has granted leave for enforcement (art 1062(1) DCCP). The competent District Court is the one with whose registry the original of the award is deposited (see section 16.1 above).
In practice, proceedings for the granting of leave for enforcement are ex parte, although the President may invite the parties to appear. This may eg be done if the losing party, upon receipt of the award, has requested the District Court that it be heard in the event of an application for enforcement.
The President of the District Court performs only a summary assessment of the award. Enforcement may be refused if the award, or the manner in which it was rendered, is ‘evidently’ contrary to public policy or good morals (art 1063(1) DCCP). The term ‘evidently’ means that the President should (and may) only investigate on a prima facie basis whether the award, or the manner in which it was rendered, is contrary to public order or good morals.
If leave for enforcement is granted, the award may still be set aside on the grounds stated in art 1065(1) DCCP.
An arbitral award rendered abroad may be recognised and enforced in the Netherlands pursuant to arts 1075 and/or 1076 DCCP. Article 1075 applies to awards that are rendered in a foreign state to which a relevant treaty applies and that refer to the treaty in question (which will in most cases be the New York Convention). If no treaty concerning recognition and enforcement of the award is applicable, the award may in principle be enforced within the Netherlands (art 1076 DCCP). Article 1076 DCCP sets out an exhaustive list of grounds that may lead to refusal of leave for enforcement of such foreign awards. This list is similar but not identical to the list set out in art 1065 DCCP regarding the setting aside of Dutch arbitral awards. It should be noted that a party may choose to invoke art 1076 DCCP if art 1075 DCCP, in combination with the relevant treaty, could also be invoked. Requesting recognition and enforcement of the arbitral award pursuant to art 1076 instead of art 1075 may carry certain advantages for the petitioner, as art 1076 contains slightly different criteria and exclusions than art 1075 and eg the New York Convention.
19. CONFIDENTIALITY OF PROCEEDINGS
19.1 What are the confidentiality requirements of the arbitral process, ie existence of the arbitration, pleadings, documents produced, hearing, award?
As in most other jurisdictions, confidentiality is a key issue in arbitrations. Although this has never been formalised in Dutch legislation or case law, confidentiality of the arbitral process is considered to be a generally accepted principle of arbitration. Historically, it is believed that confidentiality of arbitration can be considered to be a principle accepted by the parties, a breach of which could justify a claim of tort or breach of contract. It should be noted that, particularly at the international level, the principle of confidentiality has become the subject of debate, and that the confidentiality of arbitral awards, documents and pleadings can be considered to be eroding. In light of these developments, and the fact that no statutory rules on confidentiality apply, it is advisable that parties enter into a separate confidentiality agreement if they specifically require the arbitral process to be confidential.
Under art 55 NAI Rules, if the parties have agreed to the application of the Rules, they agree that the NAI shall be authorised to publish the award without stating the names or further details of the parties involved, unless either party communicates to the NAI in writing that it objects to publication.
20.1 Is there any particular aspect of the approach to arbitration in the jurisdiction which bears special mention?
There are few aspects of arbitration in the Netherlands that bear special mention. One could mention art 1050 DCCP, which leaves open the possibility of an arbitral appeal. However, this is only open to the parties if they have specifically agreed to it, and is rarely used in practice (except in building industry arbitrations, where the rules of the Court of Arbitration for the Building Industry include the option for an arbitral appeal).
Another distinctive feature of the Arbitration Act is the possibility of consolidating two or more arbitral proceedings with connected subject matters (art 1046). The President of the Amsterdam District Court is authorised to order such consolidation if the seat of all the arbitrations in question is located in the Netherlands. As art 1046 provides for an opt-out mechanism, no explicit consent by the parties involved is required for such a consolidation to be ordered.
