First published on Monday, 27 June 2011 and last verified on Monday, 23 July 2012
1.The New York Convention
Is your state a party to the New York Convention? Are there any noteworthy declarations or reservations?
Is your state a party to any other bilateral or multilateral treaties regarding the recognition and enforcement of arbitral awards?
The Belgian-Dutch Enforcement Treaty of 1925 (Stb. 1929, 405). This treaty still applies because of the more-favourable-right provision of Article VII NYC. Some conditions under the Belgian-Dutch Enforcement Treaty are less onerous than under the NYC.
Since 1966, the Netherlands has been a party to the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention), which provides for the recognition and enforcement of ICSID arbitral awards. See also question 51.
Is there an arbitration act or equivalent and, if so, is it based on the UNCITRAL Model Law? Does it apply to all arbitral proceedings with their seat in your jurisdiction?
The Dutch Arbitration Act of 1986 forms part of the Dutch Code of Civil Procedure (DCCP). The Dutch Arbitration Act is incorporated in Articles 1020-1076 DCCP.
The Dutch Arbitration Act is not based on the UNCITRAL Model Law but was considerably influenced by both the UNCITRAL Arbitration Rules of 1976 and the UNCITRAL Model Law of 1985. Accordingly, the Dutch Arbitration Act and the UNCITRAL Model Law do not differ greatly.
The UNCITRAL Model Law was adopted in the Netherlands Antilles and Aruba, which form an autonomous part of the Kingdom of the Netherlands.
Pursuant to Article 1073(1) DCCP, the provisions of the Dutch Arbitration Act shall apply if the place of arbitration is situated within the Netherlands.
4.Arbitration bodies in your jurisdiction
What arbitration bodies relevant to international arbitration are based within your jurisdiction? Do such bodies also act as appointing authorities?
The arbitration body most relevant to international arbitration is the Netherlands Arbitration Institute (NAI, www.nai-nl.org).
The other most prominent arbitration body relevant to international arbitration is the Permanent Court of Arbitration (PCA) in The Hague for investor-state and state-to-state arbitration (www.pca-cpa.org).
Both the PCA and the NAI can act as appointing authorities.
A range of other institutions administer international arbitration proceedings in the Netherlands. In many cases, their activities involve arbitration in specialist fields such as shipping and transport (Tamara Foundation, www.tamara-arbitration.nl), construction (www.raadvanarbitrage.nl - one of the few arbitration institutes in the Netherlands whose rules allow for the possibility of arbitral appeal), automation (www.sgoa.nl) and many different commodities, such as oil, grain, seeds, tulip bulbs, hides and leather.
Each arbitration institute has its own rules, its own lists of arbitrators and its own method of calculating fees and administrative costs.
Can foreign arbitral providers operate in your jurisdiction?
Is there a specialist arbitration court? Is the judiciary in your jurisdiction generally familiar with the law and practice of international arbitration?
There is no specialist arbitration court in the Netherlands. In general, the judiciary has profound knowledge of the subject and is familiar with the law and practice of international arbitration.
In general, applications in respect of arbitration where the court has a supportive role, such as the determination of the number of arbitrators, the appointment of arbitrators and a challenge to an arbitrator, will be heard at first and final instance by the Preliminary Relief Judge of the District Court in whose district the applicant has its domicile.
Applications for setting aside and revocation will be heard at first instance by the District Court with whose Registry the original of the award is deposited (ie, the Registry of the District Court within whose district the place of arbitration is located), with a right of appeal and cassation to the higher courts.
What, if any, requirements must be met if an arbitration agreement is to be valid and enforceable under the law of your jurisdiction? Can an arbitration agreement cover future disputes?
The agreement to arbitrate does not have to meet any formal requirements; it can be concluded orally. However, if one of the parties to the dispute contests the validity of the arbitration agreement, the existence of the agreement must be proven by way of a written document (Article 1021 DCCP).
The arbitration agreement can also be contained in a clause in general terms and conditions. If the general terms and conditions are accepted, either implicitly or explicitly, the arbitration clause is binding.
An arbitration agreement can also be incorporated in articles of association or in rules which bind the parties (Article 1020(5) DCCP).
Finally, an arbitration agreement can cover future disputes. Pursuant to Article 1020(2) DCCP, the arbitration agreement includes both a submission by which the parties bind themselves to submit to arbitration an existing dispute between them and an arbitration clause under which parties bind themselves to submit arbitration disputes which may arise in the future between them.
Are any types of dispute non-arbitrable? If so, which?
Certain types of dispute must be settled by state courts and cannot be resolved by way of arbitration. Arbitral proceedings may not lead to the determination of legal consequences that are not at the free disposal of the parties, which excludes certain disputes relating to family law, the granting of a bankruptcy order, the annulment of a decision of a legal person and certain intellectual property disputes (Article 1020(3) DCCP).
Furthermore, the state courts have exclusive jurisdiction (i) to grant interim protection measures, (ii) to lift prejudgment attachments, (iii) to examine a reluctant witness, (iv) to request information on foreign law, (v) to decide on disputes concerning an order to provide security made in an arbitral award, (vi) to lift, suspend and reduce a penalty, (vii) to take measures concerning the enforcement of an arbitral award, and (viii) to set aside and revoke arbitral awards.
Can a third party be bound by an arbitration clause and, if so, in what circumstances? Can third parties participate in the arbitration process through joinder or a third-party notice?
The general rule is that an arbitration agreement only binds the parties that are party to that agreement.
However, the successor in law of a party is also bound by the arbitration agreement. Furthermore, there have been cases in which a trustee in a bankruptcy has been deemed to be bound by the arbitration agreement.
Although, in principle, a third party is not bound by an arbitration agreement, there are various ways in which a third party can participate. For instance, the Dutch Arbitration Act allows a third party who has an interest in arbitral proceedings to join or intervene in them. A notice of joinder can be served upon a third party who may have indemnified one of the parties in the arbitration. Such third party will be admitted, if allowed by the tribunal and if the third party agrees to submit to the arbitration agreement (Article 1045 DCCP).
Would an arbitral tribunal with its seat in your jurisdiction be able to consolidate separate arbitral proceedings under one or more contracts and, if so, in what circumstances?
The Dutch Arbitration Act specifically provides that if two or more connected disputes have been commenced before arbitral tribunals in the Netherlands, any of the parties may request the Preliminary Relief Judge of the District Court in Amsterdam to order full or partial consolidation of such arbitral proceedings (Article 1046 DCCP).
The Preliminary Relief Judge of the District Court in Amsterdam is the only judge who is competent in this respect. The decision of the Preliminary Relief Judge is final.
11.Groups of companies
Is the group of companies doctrine (or any other method of piercing the corporate veil) recognised in your jurisdiction?
The group of companies doctrine (by which the parent company or a subsidiary of a company which is party to an arbitration agreement may be bound by that arbitration agreement) is scarcely ever recognised in the Netherlands and would probably only apply in exceptional cases. In the literature, it has been argued that in cases where a parent company or a subsidiary has total control over the company that is party to the arbitration agreement or in cases of misuse - by the parent company or a subsidiary - of the company that is party to the arbitration agreement, the parent company or subsidiary is bound by the arbitration agreement entered into by that company.
Are arbitration clauses considered separable from the main contract?
Article 1053 DCCP provides that the arbitration agreement shall be considered and judged as a separate agreement, even if that agreement has been laid down in a clause which forms part of a more extensive agreement. An arbitration agreement is, therefore, autonomous with respect to the validity or existence of the underlying contract. Consequently, even if the underlying contract is terminated or declared invalid or null and void, that will not necessarily compromise the arbitration clause.
Is the principle of competence-competence recognised in your jurisdiction? Can a party to an arbitration ask the courts to determine an issue relating to the tribunals jurisdiction and competence?
Article 1052 DCCP expressly states that the arbitral tribunal shall have the power to decide on its own jurisdiction. The Dutch Arbitration Act not only grants the tribunal the authority or competence, but in case of default of a party also the duty, to investigate and decide on its jurisdiction or lack of it.
The parties will first have to await the decision of the arbitral tribunal. The competence of the state court is only revived if the arbitral tribunal declares that it lacks jurisdiction (Article 1052(5) DCCP), and if the arbitral tribunal declares that it does have jurisdiction the parties will first have to continue the arbitral proceedings before they can challenge the competence of the arbitral tribunal before the state court (Article 1052(4) DCCP). However, an exception may be made to this rule if there is prima facie evidence that there is no valid arbitration agreement.
If the dispute is submitted to the state court before arbitration is initiated, it is arguable that the state court would be allowed to decide (on the grounds of Article 1022 DCCP) whether the court or the arbitral tribunal has jurisdiction. If the case is subsequently also submitted to the arbitral tribunal, the tribunal will declare that it even lacks jurisdiction to decide on its own competence.
Are there particular issues to note when drafting an arbitration clause where your jurisdiction will be the seat of arbitration or the place where enforcement of an award will be sought?
Dutch law does not lay down any special requirements regarding the drafting of an arbitration clause. However, it is generally advisable to include in the arbitration clause a provision specifying the place of the arbitration, the language in which the arbitration shall be conducted and the number of arbitrators.
Is institutional international arbitration more or less common than ad hoc international arbitration? Are the UNCITRAL Rules commonly used in ad hoc international arbitrations in your jurisdiction?
Institutional international arbitration is more common than ad hoc international arbitration in the Netherlands. The DCCP contains provisions which may assist in conducting ad hoc arbitrations, for instance concerning the appointment of the arbitrators, which may require the assistance of the Preliminary Relief Judge of the District Court (Article 1027 DCCP).
In ad hoc international arbitrations in the Netherlands, the UNCITRAL Arbitration Rules are commonly used. As appointing authority, the parties can refer not only to the Secretary General of the Permanent Court of Arbitration in The Hague, but also to the Netherlands Arbitration Institute, which is prepared to act as appointing authority (Article 14(7) NAI Arbitration Rules).
What, if any, are the particular points to note when drafting a multi-party arbitration agreement with your jurisdiction in mind? In relation to, for example, the appointment of arbitrators.
The Dutch Arbitration Act does not contain any specific provision on multi-party arbitrations. Hence, the requirements for drafting a multi-party arbitration agreement are the same as for two-party arbitration agreements. If the parties cannot agree on the number of arbitrators, which may be the case in multi-party contracts providing for arbitration where all of the parties wish to appoint an arbitrator, any of the parties may request the Preliminary Relief Judge of the District Court of the place of arbitration to determine the number of arbitrators (Article 1026 DCCP).
17.Request for arbitration
How are arbitral proceedings commenced in your jurisdiction? Are there any key provisions under the arbitration laws of your jurisdiction relating to limitation periods of which the parties should be aware?
If the parties have agreed to an arbitration clause, the arbitration shall be deemed to have been commenced on the day of receipt of a notice in writing from one party informing the other party that he is commencing arbitration. The notice shall contain a description of the matters which the party commencing the arbitration wishes to submit to arbitration (Article 1025(1) DCCP).
An arbitration shall be deemed to have been commenced by the conclusion of a submission agreement, unless the parties have agreed to a different method of commencement (Article 1024(2) DCCP). The submission agreement must be proven by an instrument in writing (Article 1021 DCCP) and must contain a description of the matters being submitted to arbitration (Article 1024(1) DCCP).
If the parties have agreed to the applicability of institutional arbitration rules, such rules will normally prescribe the method by which the arbitral proceedings are commenced. For instance, Article 6(1) of the NAI Arbitration Rules provides that an arbitration commences by the filing of a request for arbitration with the NAI Secretariat.
18.Choice of law
How is the substantive law of the dispute determined? Where the substantive law is unclear, how will a tribunal determine what it should be?
The choice of law by the parties is decisive. If a choice of law has been made by the parties, the arbitral tribunal shall make its award in accordance with the rules of law chosen by the parties (Article 1054(2) DCCP). The choice of substantive law does not necessarily have to be included in the arbitration agreement. It can be agreed upon in the main contract, in general terms and conditions or in another - later or earlier - agreement. The parties can agree that the substantive law is based on internationally accepted principles, such as the Lex Mercatoria, the UNIDROIT Principles of International Contract Law or the Principles of European Contract Law.
If no such choice of law has been made by the parties, the arbitral tribunal shall make its award in accordance with the rules of law it considers appropriate (Article 1054(2) DCCP).
The Dutch Arbitration Act is based on the principle of voie directe, meaning that the arbitral tribunal is not bound by the rules of international private law. In practice, however, such rules of international private law are generally applied in cases where the parties have not made a choice of substantive law.
APPOINTING THE TRIBUNAL
19.Choice of arbitrators
Does the law of your jurisdiction place any limitations in respect of a partys choice of arbitrator?
Can non-nationals act as arbitrators where the seat is in your jurisdiction or hearings are held there? Is this subject to any immigration or other requirements?
Any natural person of legal capacity may be appointed as arbitrator. Article 1023 DCCP explicitly states that no person shall be precluded from appointment by reason of his nationality, unless the parties have agreed otherwise. This means that foreign arbitrators can also be appointed in international arbitrations in the Netherlands, as long as they are independent and impartial (see also question 19).
Parties usually agree that the chairman of the arbitral tribunal will not have the same nationality as the parties (see for example Article 16(3) NAI Arbitration Rules).
21.Default appointment of arbitrators
How are arbitrators appointed where no nomination is made by a party or parties or the selection mechanism fails for any reason? Do the courts have any role to play?
First of all, the number of arbitrators must be determined. The arbitral tribunal shall be composed of an uneven number of arbitrators (Article 1026(1) DCCP). If the parties have not agreed on the number of arbitrators, or if the agreed method of determining that number is not carried out and the parties cannot reach agreement, the number of arbitrators shall, at the request of either party, be determined by the Preliminary Relief Judge of the District Court (Article 1026(2) DCCP).
The arbitrator(s) shall be appointed by any method agreed by the parties. The parties may also entrust the appointment of the arbitrator or arbitrators, or any of them, to a third person. If no method of appointment is agreed upon, the arbitrator or arbitrators shall be appointed by consensus between the parties (Article 1027(1) DCCP).
The appointment must be made within two months after the commencement of the arbitration, unless the arbitrator or arbitrators have already been appointed. The period for appointment shall be extended to three months if at least one of the parties is domiciled or has his actual residence outside the Netherlands. These periods may be shortened or extended by agreement between the parties (Article 1027(2) DCCP).
If the appointment of the arbitrator or arbitrators is not made within the aforementioned period of two (or three) months, the arbitrator shall, at the request of either party, be appointed by the Preliminary Relief Judge of the District Court. The other party shall be given an opportunity to be heard (Article 1027(3) DCCP).
Are arbitrators afforded immunity from suit under the law of your jurisdiction and, if so, in what terms?
The Dutch Arbitration Act does not provide for an exemption from liability. However, the Dutch Supreme Court, in its decision of 4 December 2009, NJ (Dutch Law Report) 2011, 131, ruled as follows: As regards the Dutch national courts, pursuant to Article 42 of the Judicial Officers (Legal Status) Act (Wet rechtspositie rechterlijke ambtenaren) the judicial officer in question is not personally liable for damage resulting from an erroneous court decision, but recourse against the judicial officer is possible if the state might be sued successfully in that connection and if there was intent or deliberate recklessness on the part of the judicial officer. There are no such statutory regulations for arbitrators, but the conclusion is that arbitrators can only be held personally liable if they acted intentionally or deliberately recklessly with respect to the decision to set aside an award or in manifestly and grossly failing to recognize what the proper performance of one's duties involves.
The NAI Arbitration Rules do provide for the exclusion of liability in Article 66.
23.Securing payment of fees
Can arbitrators secure payment of their fees in your jurisdiction? Are there fundholding services provided by relevant institutions?
Although it is not provided for in the Dutch Arbitration Act, the arbitral tribunal will generally request payment of a deposit from a party making either a claim or a counterclaim, in respect of its fees and expenses. In arbitration proceedings conducted under the NAI Arbitration Rules, the NAI will administer and hold the advances. Article 59 of the NAI Arbitration Rules explicitly provides for the payment of a deposit for costs (from which the fees and disbursements of the arbitrator(s) are to be paid). The arbitral tribunal may suspend the proceedings with respect to either the claim(s) and/or the counterclaim(s), if payment of the deposit is not made upon request (Article 59(6) NAI Arbitration Rules).
24.Grounds of challenge
On what grounds may a party challenge an arbitrator? How are challenges dealt with in the courts or (as applicable) the main arbitration institutions in your jurisdiction? Will the IBA Guidelines on Conflicts of Interest in International Arbitration generally be taken into account?
An arbitrator may be challenged if circumstances exist that give rise to justifiable doubts as to his impartiality or independence. A secretary engaged by an arbitral tribunal may be challenged on the same grounds (Article 1033(1) DCCP). A party may only challenge an arbitrator appointed by him on grounds of which he has become aware after the appointment has been made (Article 1033(2) DCCP). Furthermore, a party may not challenge an arbitrator appointed by a third person or the Preliminary Relief Judge of the District Court if he has acquiesced in this appointment, unless he has become aware of the ground for challenge after the appointment has been made (Article 1033(3) DCCP).
The procedure for challenging arbitrators is laid down in Article 1035 DCCP. The challenge and the grounds therefor shall be notified in writing by the challenging party to the challenged arbitrator, the other members of the arbitral tribunal, the other party and, if a third person has appointed the challenged arbitrator, this third person. The arbitral tribunal may suspend the arbitral proceedings as of the day of receipt of the notification (Article 1035(1) DCCP). If the challenged arbitrator does not withdraw within two weeks after the day of receipt of the notification, the Preliminary Relief Judge of the District Court shall, at the request of either party, decide on the merits of the challenge. If no such request is made within four weeks after the day of receipt of the notification, the right to challenge shall be barred and the arbitral proceedings, if suspended, shall continue from the stage they had reached (Article 1035(2) DCCP). If the challenged arbitrator or one or both of the parties is domiciled or has his actual residence outside the Netherlands, the periods mentioned above are six and eight weeks respectively (Article 1035(4) DCCP). If the challenged arbitrator withdraws, or if the challenge is upheld by the Preliminary Relief Judge of the District Court, the arbitrator shall, unless the parties have agreed otherwise, be replaced in accordance with the rules governing his initial appointment (Article 1035(3) DCCP).
Although they are non-binding, the IBA Guidelines on Conflicts of Interest in International Arbitration will generally be taken into account.
25.Types of relief
What main types of interim relief are available in respect of international arbitration and from whom (the tribunal or the courts)? Are anti-suit injunctions available where proceedings are brought elsewhere in breach of an arbitration agreement?
The Dutch Arbitration Act contains two provisions providing for interim relief: (i) summary proceedings before the Preliminary Relief Judge of the District Court (Article 1022(2) DCCP) and (ii) summary proceedings before the arbitral tribunal (Article 1051 DCCP).
(i) Summary Proceedings before the Preliminary Relief Judge of the District Court
An arbitration agreement may not preclude a party from requesting a court to grant interim measures of protection or from applying to the Preliminary Relief Judge of the District Court for a decision in summary proceedings (Article 1022(2) DCCP). The main type of interim measure is leave to levy prejudgment attachments, which arbitrators are not allowed to grant.
(ii) Summary proceedings before the arbitral tribunal
Article 1051 DCCP provides for the possibility of the parties agreeing to empower the arbitral tribunal or its chairman to render an award in summary proceedings (in Dutch: arbitraal kort geding) either (a) during the arbitral proceedings or (b) without starting main proceedings. For more on summary arbitral proceedings after the appointment of the arbitral tribunal, see Article 37 NAI Arbitration Rules, which states that the arbitral tribunal is authorised, at the request of a party, to make an award in summary arbitral proceedings at any stage of the proceedings in cases where, considering the interests of the parties, an immediate provisional measure is urgently required. This includes the authority to order the provision of security. For more on summary proceedings where an arbitration has not commenced and the appointment of arbitrators has not yet been confirmed, see Articles 42a - 42o NAI Arbitration Rules (see Article 42l(2) for the provision of security).
Arbitral tribunals are also free to render interim awards (Article 1049 DCCP), although the Dutch Arbitration Act does not contain any provision on interim relief during arbitral proceedings (apart from the summary proceedings in Article 1051 DCCP). An arbitral tribunal could derive jurisdiction to grant such interim relief from Article 1036 DCCP, which states that the arbitral proceedings shall be conducted in such manner as agreed between the parties or, to the extent that the parties have not agreed, as determined by the arbitral tribunal. It is argued that interim relief ordered by the arbitral tribunal during arbitral proceedings (not in summary proceedings) constitutes an interim award, which is not enforceable. See also Article 38(1) NAI Arbitration Rules, which states that the arbitral tribunal may, at the request of a party, provisionally make any decision or take any measure regarding the object of the dispute which it deems useful or necessary at any point in the proceedings. This includes the authority to order the provision of security.
An anti-suit injunction is not allowed under EC Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. According to the ECJ decision of 10 February 2009 (Allianz v West Tankers), it is incompatible with the Regulation for a court of a member state to make an order to restrain a person from commencing or continuing proceedings before the courts of another member state on the ground that such proceedings would be contrary to an arbitration agreement. The question remains whether anti-suit injunctions would be available in respect of proceedings brought outside the EU.
26.Security for costs
Does the law of your jurisdiction allow a court or tribunal to order a party to provide security for costs?
Although it is not provided for in the Dutch Arbitration Act, the arbitral tribunal will generally request payment of a deposit from a party making either a claim or a counterclaim in respect of its fees and expenses. See also Article 37 NAI Arbitration Rules (summary arbitral proceedings after the appointment of the arbitral tribunal on the merits), which states, inter alia, that the arbitral tribunal is authorised to order the provision of security on behalf of the party who requests it, in a form to be determined by the arbitral tribunal, regarding any claim or counterclaim, as well as regarding costs related to the arbitration on the merits. See Article 42l(2) for the provision of security in summary proceedings if the arbitration has not yet commenced. See also question 23.
Are there any mandatory rules in your jurisdiction that govern the conduct of the arbitration (e.g. general duties of the tribunal and/or the parties)?
Although the Dutch Arbitration Act acknowledges the principle of party-autonomy in Article 1036 DCCP: (...) the arbitral proceedings shall be conducted in such manner as agreed between the parties (...), there are certain mandatory rules. Where provisions of the Dutch Arbitration Act do not include the words unless the parties have agreed otherwise, the provision is in principle mandatory and the parties cannot derogate from it. Those provisions relate to the representation of the parties during the arbitral proceedings (Article 1038 DCCP), the equal treatment of the parties (Article 1039(1) DCCP), the default of a party (Article 1040 DCCP), the examination of witnesses (Article 1041 DCCP), the experts appointed by the arbitral tribunal (Article 1042 DCCP), the personal appearance of the parties (Article 1043 DCCP), requests for information on foreign law (Article 1044 DCCP), the joinder and intervention of third parties (Article 1045 DCCP), the consolidation of arbitral proceedings (Article 1046 DCCP) and, finally, the time limit for making the award (Article 1048 DCCP).
28.Refusal to participate
What is the applicable law (and prevailing practice) where a respondent fails to participate in an arbitration?
If the respondent, without showing good cause, fails to submit a defence in spite of being given a reasonable opportunity to do so, the arbitral tribunal may render an award forthwith (Article 1040(2) DCCP). The arbitral tribunal shall render an award in favour of the claimant, unless it considers the claim to be unlawful or unfounded. Before rendering an award, the arbitral tribunal may require the claimant to produce evidence in support of one or more of his allegations (Article 1040(3) DCCP).
What types of evidence are usually admitted, and how is evidence usually taken? Will the IBA Rules on the Taking of Evidence in International Commercial Arbitration generally be taken into account?
Unless the parties have agreed otherwise, the arbitral tribunal has discretion in the rules of evidence to be applied (Article 1039(5) DCCP). The arbitral tribunal is thus not bound by the formal rules of evidence laid down in the DCCP and which apply in court proceedings.
Evidence can be provided by all means, including, for example, written evidence, witnesses or experts. Pursuant to Article 1039(3) DCCP, the arbitral tribunal may, at the request of either party, allow a party to produce witnesses or experts.
The IBA Rules on the Taking of Evidence in International Arbitration can generally be taken into account. The parties and the tribunal are free to adapt them to the particular circumstances of the arbitration.
Will the courts in your jurisdiction play any role in the obtaining of evidence?
An arbitration agreement may not preclude a party from requesting a court to order a preliminary witness examination, a preliminary expert report or a preliminary site visit, unless arbitrators have been appointed at the time of the request (Article 1022(3) DCCP).
Furthermore, if a witness does not appear voluntarily or, having appeared, refuses to give evidence, the arbitral tribunal may allow a party who so requests, to petition the Preliminary Relief Judge of the District Court, within a period of time determined by the arbitral tribunal, to appoint a judge-commissary before whom the examination of the witness shall take place. The examination shall take place in the same manner as in ordinary court proceedings. The Clerk of the District Court shall give the arbitrator or arbitrators an opportunity to attend the examination of the witness (Article 1041(2) DCCP).
What is the relevant law and prevailing practice relating to document production in international arbitration in your jurisdiction?
The arbitral tribunal shall have the power to order the production of any documents that it deems relevant for the dispute (Article 1039(4) DCCP). The arbitral tribunal has discretionary power on this, but parties can also make a request to that effect to the arbitral tribunal. The arbitral tribunal cannot oblige a party to produce documents. However, it can draw whatever conclusion it deems appropriate if a party refuses to produce the requested documents. Since the DCCP does not contain a procedure for discovery, arbitral tribunals (consisting of Dutch arbitrators) would be disinclined to grant wide-ranging document disclosure.
Is it mandatory to have a final hearing on the merits?
Pursuant to Article 1039(2) DCCP, the arbitral tribunal shall, at the request of either party or on its own initiative, give the parties an opportunity to make an oral presentation. If one of the parties requests an oral hearing, the tribunal must grant the request. The tribunal is not allowed to reject it. Strictly speaking, the parties are not allowed to agree to waive the right to an oral hearing. Even if none of the parties requests an opportunity to make an oral presentation, the tribunal can initiate an oral hearing on its own initiative.
33.Seat or place of arbitration
If your jurisdiction is selected as the seat of arbitration, may hearings and procedural meetings be conducted elsewhere?
Pursuant to Article 1037(3) DCCP, the arbitral tribunal may hold hearings, deliberate, and examine witnesses and experts at any other place, within or outside the Netherlands, which it deems appropriate. The place of arbitration is merely a legal place.
Can the tribunal decide by majority?
35.Limitations to awards and relief
Are there any particular types of remedies or relief that an arbitral tribunal may not grant?
Are dissenting opinions permitted under the law of your jurisdiction? If so, are they common in practice?
Article 1057(1) DCCP (see question 34) does not prohibit dissenting or concurring opinions. However, they are relatively rare in practice. Furthermore, the Supreme Court of the Netherlands held in its decision of 5 December 2008 ((Dutch Law report) NJ 2009, 6) that a dissenting opinion does not form part of the award.
What, if any, are the legal and formal requirements for a valid and enforceable award?
Pursuant to Article 1057 DCCP, an arbitral award must be in writing, signed by the arbitrator(s), and in addition to the decision, the award must contain in any case:
(a) the names and addresses of the arbitrator or arbitrators;
(b) the names and addresses of the parties;
(c) the date on which the award is made;
(d) the place where the award is made; and
(e) the reasons for the decision, unless the award concerns merely the determination of the quality or condition of goods or the recording of a settlement.
What time limits, if any, should parties be aware of in respect of an award? In particular, do any time limits govern the interpretation and correction of an award?
Time limit for making the award
First of all, the arbitral tribunal is free to determine the time when the award shall be made (Article 1048 DCCP).
Deposit of the arbitral award
The Dutch Arbitration Act adopts the system of deposit of the arbitral award. Pursuant to Article 1058(1) DCCP, the arbitral tribunal shall ensure that the original of the final or partial final award is deposited without delay with the Registry of the District Court within whose district the place of arbitration is located. The deposit of the arbitral award is of the essence for the start of the term within which (i) a request for rectification and/or correction must be made (Article 1060(1) and (2) DCCP), (ii) a request for an additional award must be made (Article 1061(1) DCCP), and (iii) an application for setting aside must be made (Article 1064(3) DCCP).
Request for rectification and/or correction and a request for an additional award
A request for rectification and/or correction and a request for an additional award must be made not later than thirty days after the date of deposit of the award with the Registry of the District Court (Articles 1060(1) and (2) and 1061(1) DCCP).
Application for setting aside
The timeframe within which an application for setting aside must be made is not later than three months, which term can start at three moments: (i) from the date of deposit of the award with the Registry of the District Court, (ii) from the serving of the arbitral award, together with leave for enforcement, on the other party (Article 1064(3) DCCP) and (iii) if an additional award is rendered or rejected, from the date of deposit of the additional award or the notification of the rejection with the Registry of the District Court (Article 1065(7) DCCP).
The Dutch Arbitration Act does not provide for interpretation of the award, at least not after the termination of the mandate of the arbitrator(s).
Are parties able to recover fees paid and costs incurred? Does the loser pays rule generally apply in your jurisdiction?
The 'loser pays' rule generally applies in the Netherlands. Depending on the circumstances of the case, the arbitral tribunal may consider not awarding full costs against the losing party. Unless otherwise agreed, the arbitral tribunal may award the costs of legal assistance incurred by the party in whose favour the award is rendered against the losing party if and to the extent that these costs are deemed reasonable and necessary by the arbitral tribunal (see also Article 60 NAI Arbitration Rules).
40.Interest on the award
Can interest be included on the principal claim and costs? Is there any mandatory or customary rate?
Where Dutch substantive law applies, the default position is that the principal claim is often subject to compound interest at contractual or statutory interest rates (Articles 6:119 and 6:119a Dutch Civil Code). The statutory interest rate is determined (for most engagements) by Order in Council or (for trade agreements) at 7 percentage points above the ECB's refinancing rate (Article 6:120 Dutch Civil Code). The latter interest rate is generally much higher than the former.
41.Grounds for appeal
Are there any grounds on which an award may be appealed before the courts of your jurisdiction?
42.Other grounds for challenge
Are there any other bases on which an award may be challenged, and if so what?
Pursuant to Article 1064(1) DCCP, recourse to a court against a final or partial final arbitral award which is not open to appeal to a second arbitral tribunal, or a final or partial final award rendered on arbitral appeal, may be made only by an application for (i) setting aside or (ii) revocation.
(i) Setting aside
An award may only be set aside on one or more of the following grounds (Article 1065(1) DCCP):
(a) absence of a valid arbitration agreement;
(b) the arbitral tribunal was constituted in violation of the applicable rules;
(c) the arbitral tribunal has not complied with its mandate;
(d) the award is not signed or does not contain reasons; and
(e) the award, or the manner in which it was made, violates public policy or good morals.
Revocation of the award is possible in the event of fraud, forgery and the emergence of new documents (Article 1068(1) DCCP).
Rectification and/or correction and additional award
Furthermore, Articles 1060 and 1061 DCCP provide for the rectification and/or correction of the award and for the making of an additional award.
43.Modifying an award
Is it open to the parties to exclude by agreement any right of appeal or other recourse that the law of your jurisdiction may provide?
44.Enforcement of set-aside awards
Will an award that has been set aside by the courts in the seat of arbitration be enforced in your jurisdiction?
A Dutch court is not required by the New York Convention to refuse to recognise and enforce a foreign arbitral award that has been annulled by the court of the seat of arbitration if the judgment by which the arbitral award is set aside cannot be given extraterritorial effect. To be given extraterritorial effect, a foreign annulment judgment must meet a number of essential requirements, including observance of due process, which requires that the court from which the judgment emanates has acted in an impartial and independent manner.
There is only one decision in which a Dutch court granted leave for enforcement of annulled arbitral awards. In a decision dated 28 April 2009, the Amsterdam Court of Appeal granted enforcement of four arbitral awards annulled by the Russian courts under the New York Convention of 1958. The Court of Appeal reasoned: [...] since it is very likely that the judgments by the Russian civil judge setting aside the arbitration decisions are the result of a dispensing of justice that must be qualified as partial and dependent, said judgments cannot be recognized in the Netherlands. This means that in considering the application by Yukos Capital for enforcement of the arbitration decisions, the setting aside of that decision by the Russian court must be disregarded.
What trends, if any, are suggested by recent enforcement decisions? What is the prevailing approach of the courts in this regard?
To what extent might a state or state entity successfully raise a defence of state or sovereign immunity at the enforcement stage?
Article 13a of the Act on General Provisions of Kingdom Legislation stipulates that the execution of judicial decisions is subject to exceptions recognised in international law. One such exception may be the immunity of states from execution. State immunity from execution is not absolute in the Netherlands. In general - in the absence of an explicit waiver in that respect -, the execution of an award by seizing state property with a public function cannot be subject to enforcement measures. There is an ongoing discussion about precisely which categories of property should be regarded as having a public function.
To what extent are arbitral proceedings in your jurisdiction confidential?
The Dutch Arbitration Act contains no provisions relating to confidentiality. It is however generally accepted that arbitration is confidential and that the parties and arbitrators involved are bound to secrecy.
Article 55 of the NAI Arbitration Rules explicitly provides for confidentiality and secrecy: Arbitration is confidential and all individuals involved either directly or indirectly are bound to secrecy, save and insofar as disclosure ensues from the law or the agreement of the parties.
48.Evidence and pleadings
What is the position relating to evidence produced and pleadings filed in the arbitration? Are these confidential? Is there any way that they might be relied on in other proceedings (whether arbitral or court proceedings)?
Although there is no case law on this topic, it is generally presumed that there is no obligation on a party to maintain confidentiality regarding the evidence and submissions produced in the arbitration other than any obligation arising from a confidentiality clause in the contract between the parties.
What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your jurisdiction?
Dutch counsels have to observe the Rules of Professional Conduct for Lawyers (in Dutch: Gedragsregels 1992). Furthermore, there are a number of non-binding ethical codes for arbitrators and counsel, inter alia the IBA Rules of Ethics for International Arbitrators and the IBA Guidelines on Conflicts of Interest in International Arbitration.
Are there any particular procedural expectations or assumptions of which counsel or arbitrators participating in an international arbitration with its seat in your jurisdiction should be aware?
Subject to mandatory procedural rules in the Dutch Arbitration Act (see question 27), the tribunal will generally adapt the procedure to suit the arbitration and the parties involved.
However, all participants should be aware of differences between common-law and civil-law jurisdictions. The Netherlands has a civil-law jurisdiction.