The Netherlands

• Courts' willingness to intervene in the arbitral process
• Appeals and setting aside awards
• Consolidation
• Injunctions
• Mandatory provisions
• Further details

Dutch arbitration law received a significant update with the coming into force of the modernised Dutch Arbitration Act on 1 January 2015 (the “2015 Act”). Like its predecessor, the 2015 Act is designed to provide the parties with a maximum amount of freedom to organize their arbitration. In addition, further efforts were made to increase the efficiency of arbitral proceedings, for example by explicitly enabling e-arbitration (Article 1072b), and further reducing recourse to national courts.

The 2015 Act applies to arbitral proceedings that have been instituted on or after 1 January 2015. References are to Articles of the 2015 Act.

Courts' willingness to intervene in the arbitral process

The courts (often the Preliminary Relief Judge of the District Court, and also often with no possibility of appeal by either party in relation to the judge's  decision) will generally only intervene in the arbitral process in order to support an arbitration. For example:

• assisting the process: the courts will assist in facilitating and speeding up the arbitral process. For example, the courts may order the appearance of a witness who is not prepared to appear before the arbitral tribunal voluntarily (Article 1041a); request information on foreign law on the basis of the European Convention on Information on Foreign Law (1968), unless otherwise agreed by the parties (Article 1044); and consolidate arbitral proceedings pending in the Netherlands, unless otherwise agreed by the parties (Article 1046).
• appointment and removal of arbitrators: at the request of either party the courts shall appoint one or more arbitrators if the parties have failed to do so and the parties have failed to agree on a method of appointment (Article 1027). The courts can also determine the number of arbitrators where the parties have failed to reach an agreement, or if the agreed method of determining that number is not carried out and the parties are unable to reach an agreement on the number (Article 1026).
• an arbitrator may be challenged if circumstances exist that give rise to justifiable doubt as to the arbitrator's impartiality or independence (Article 1033). The parties may agree that a third party, such as an arbitral institute, will decide on any challenge (Article 1035). In the absence of such agreement, the ultimate decision is taken by the courts.
• jurisdiction: an arbitral tribunal may rule on its own jurisdiction (Article 1052). A party must raise a plea that the arbitral tribunal lacks jurisdiction on the ground that there is no valid arbitration agreement before submitting a defence. Any decision by the arbitral tribunal as to its jurisdiction can only be challenged by an application for setting aside (Articles 1052 and 1064). If the arbitral tribunal concludes that it has no jurisdiction due to lack of a valid arbitration agreement, the court can consider whether it has jurisdiction to try the case. However, if the arbitral tribunal lacks jurisdiction on any other ground, the arbitration agreement will remain in effect and the appropriate party can once again bring a claim to arbitration, unless the parties have agreed otherwise (Articles 1052 and 1067). Importantly, the 2015 Act mandates that when a Dutch court is seised of a dispute in respect of which an arbitration agreement has been concluded, the court must decline jurisdiction, unless it finds the arbitration agreement to be invalid. This obligation exists for arbitration proceedings (and arbitration agreements calling for an arbitration to be) seated in the Netherlands or abroad (Articles 1022 and 1074).

Appeals and setting aside awards

The 2015 Act provides a non-mandatory framework for arbitral appeal (Articles 1061a-1061l). Additionally, the 2015 Act allows the parties to request (and the tribunal on its own motion to proceed with) the rectification of the award, should manifest computing, clerical or other similar errors exist (Article 1060). Similarly, the parties may request the tribunal to make an additional award in case any claims brought before the tribunal were not decided by it (Article 1061). Unless the parties have agreed to an appeal to a second arbitral tribunal, recourse against an award is limited to actions for it to be set aside and applications to revoke it (Articles 1064 to 1068).

An award can only be revoked in case of fraud, forgery of documents or if, after an award is 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 (Article 1068).

An application to set aside an arbitral award shall be made to the Court of Appeal in the judicial district where the seat of arbitration is located (Article 1064a). Such application must be made within three months after the date the arbitral award was sent to the parties or, if the parties agreed to deposit the arbitral award with the courts, within three months of that deposit (Article 1064a). Importantly, the 2015 Act assumes that an award is deemed to have been sent to the parties four weeks after the date of the award (Article 1058(2)). Thus, in practice, in those cases where the award needs not be deposited, parties have four months in total to file a setting aside application. Appeal in cassation can be brought against a decision of the Court of Appeal on a request to set aside an arbitral award. The parties may agree to exclude the possibility to appeal in cassation against such a decision of the Court of Appeal, unless one of the parties is a natural person not acting in the course of a trade or business (i.e. a consumer) (Article 1064a).

An award can only be set aside on one or more of the following grounds (Article 1065):

• the absence of a valid arbitration agreement;
• the arbitral tribunal having been constituted in breach of the applicable rules;
• the arbitral tribunal having failed to comply with its mandate;
• the award not being signed or not containing reasons in accordance with the provisions of Article 1057;
• the award, or the way in which it was made, violating public policy (this may cover the setting aside of an award on procedural (due process) grounds if they are of a fundamental nature).

If the setting aside ground only concerns a part of the award, the remaining part of the award will not be set aside as long as it is not inseparably connected to that part to be set aside, also taking into account the content and purpose of the award (Article 1065). At the request of either party or of its own motion, the Court of Appeal can suspend the setting aside proceedings in order to allow the arbitral tribunal to rectify the ground for setting aside by resuming the arbitral proceedings, or by taking any other measure that the arbitral tribunal deems appropriate (Article 1065a) (remission).

Unless otherwise agreed by the parties, the jurisdiction of the courts will be revived (if Dutch courts would indeed have jurisdiction) once a decision setting aside an arbitral award has become final, if and to the extent that the arbitral award has been set aside on the ground of absence of a valid arbitration agreement. If and to the extent that the arbitral award is set aside on another ground, the arbitration agreement shall remain valid (Article 1067).

Consolidation

As regards pending arbitral proceedings seated in the Netherlands, a party may request that a third party designated for that purpose by the parties (such as an arbitration institute) order consolidation with pending arbitral proceedings seated either in or outside the Netherlands (Article 1046). In the absence of a designated third party, consolidation of proceedings pending in the Netherlands with other arbitral proceedings pending in the Netherlands may be requested from the Preliminary Relief Judge of the District Court. Consolidation of proceedings can be expressly excluded (in advance) by agreement between the parties.

Injunctions

A party can request the courts to grant conservatory measures (Article 1022a) or to order a preliminary witness examination, a preliminary expert report, or a preliminary site visit, or to order a review, copy or excerpt of certain records (Article 1022b). However, if a party invokes the existence of an arbitration agreement before submitting a defence, the court shall only declare that it has jurisdiction if the requested measure cannot, or cannot in a timely manner, be obtained in arbitration (Article 1022c).

During pending arbitral proceedings on the merits, the arbitral tribunal may, at the request of one of the parties, order interim measures, with the exclusion of conservatory attachment measures, unless otherwise agreed by the parties (Article 1043b).

Additionally, the parties may agree to authorize an arbitral tribunal separately appointed for the purpose (and regardless of whether the proceedings on the merits are pending), to grant interim measures, except for conservatory attachment measures, at the request of any of the parties and should the tribunal find such measures necessary. At the unanimous request of the parties, this arbitral tribunal may immediately render an award on the merits instead of issuing a decision on interim measures (Article 1043b). 

Mandatory provisions

The system of the law is such that if a provision does not specifically allow the parties to exclude it by agreement such provision may not, in principle, be derogated from by agreement of the parties.

Further details

For further details on Dutch arbitration law, see the Dutch Arbitration Act 2015 and the Netherlands Arbitration Institute ("NAI") Arbitration Rules of 2015.

• Arbitrators' attitude to procedure
• Arbitrators' role in settlement
• Costs of arbitrations
• Availability of arbitrators

Arbitrators' attitude to procedure

Generally, Dutch arbitrators have a civil law background. Nevertheless, in international cases arbitrators tend to have a flexible attitude to the procedure and the presentation of evidence. Certainly, in cases where one or more of the parties come from a common law background, arbitrators can be expected to allow some form of discovery or production of documents and the cross-examination of witnesses. The modalities will be adapted to the particularities of each case and the wishes and requirements of the parties.

Arbitrators' role in settlement

Dutch law does not prevent arbitrators from promoting or encouraging parties to reach a settlement agreement during the arbitration. Although it is not uncommon for arbitrators to invite parties to consider the amicable settlement of their dispute, whether arbitrators will encourage the parties to do so will depend on the individuals sitting as arbitrators and the specific circumstances of the case. In practice, arbitrators will be very mindful that any role they may play in the encouragement of an amicable settlement not be seen as a prejudgment of the case.

Should the parties reach a settlement in the course of the arbitral proceedings, they may request the arbitral tribunal to record the content of the settlement in the form of an arbitral award. The arbitral tribunal may, however, refuse this request without the need to provide reasons (Article 1069).

Costs of arbitrations

Under the Arbitration Rules of the NAI, which is the only general arbitration institute in the Netherlands, the arbitrators’ fees will be determined based on the length of, the financial interest in, and the complexity of the case. The arbitrators’ fees in NAI arbitration are determined using an hourly rate system, where the hourly rates are set pursuant to guidelines set by the NAI Executive Board. The normal range of hourly rates for arbitrators in NAI proceedings goes from EUR 175-550 per hour for proceedings on the merits and from EUR 225-575 per hour for summary arbitral proceedings. Additionally the hourly rate for a tribunal secretary ranges from EUR 100-225 for both merits and summary proceedings. These hourly rates are based on a range of financial interests from less than EUR 50,000 up to more than EUR 250,000,000. However, in special circumstances these rates may be modified. As a rule of thumb, having three arbitrators settle a dispute will roughly entail twice the costs of having one arbitrator do so.

Other costs that may be incurred during an arbitration include:

- the reimbursement of costs incurred by witnesses and costs relating to the preparation of expert reports and testimony;

-costs relating to the organisation of a hearing, such as the booking of hearing facilities, the hiring of interpreters, transcribers and technical support;

-costs for a secretary to the arbitral tribunal; and

-the reimbursement of expenses of the arbitrators, which may include travel expenses.

For the fees and disbursements of the arbitrators a deposit made by the parties will be required.

The NAI’s administration costs are a fixed sum calculated on the basis of a scale ranging from EUR 660 (for a financial interest of less than EUR 25,000) to a maximum of EUR 75,000 (for a financial interest of more than EUR 250,000,000).

With regard to the costs of legal assistance, Dutch lawyers tend to charge lower rates compared to US or English lawyers.

Notably, the NAI Arbitration Rules expressly provide that the unsuccessful party will be ordered to pay the costs of the arbitration (which include the administration costs, the tribunal’s fees and disbursements, and the costs of legal representation), except in special circumstances which will be determined at the tribunal’s discretion. If neither party is fully successful, the arbitral tribunal may also decide to divide all or part of the costs of the arbitration (Article 57 NAI Arbitration Rules).

Availability of arbitrators

There are many internationally experienced arbitrators in the Netherlands, with a wide variety of qualifications and foreign language skills. The NAI has its own database of arbitrators from which it selects names to propose to the parties or to appoint directly, as the circumstances may require. Although the NAI’s primary option for the appointment of arbitrators is party appointment, it relies on the list procedure as a fall-back mechanism, with the parties also having the possibility to opt-in to the list procedure as the main means for the appointment or arbitrators.  In addition, there are several specialised institutes which also have their own lists of arbitrators. Examples of such institutes include the Court of Arbitration for Art (CAfA), P.R.I.M.E. Finance, UNUM (specialized in maritime and shipping disputes), and the Arbitration Board for the Building Industry (Raad van Arbitrage voor de Bouw). Most of these institutes allow parties to appoint arbitrators that are not included in their lists. Other institutes, such as the Permanent Court of Arbitration in The Hague, do not have lists from which arbitrators are appointed.

Notably, in 2022, the NAI announced a new set of arbitration rules, which are expected to enter into force in 2023. The new rules address topics such as early determination, data protection, third party funding, and introduce an expedited procedure, which will be applicable to disputes that do not exceed the two million euro threshold (although parties may choose to apply such procedure to disputes which exceed said threshold).

Additionally, in July 2022, The Hague Court of Arbitration for Aviation (The Hague CAA) was launched, boasting an offering of highly specialised arbitration and mediation centres. The Hague CAA has specifically been designed with the global aviation industry in mind and aims at administering the resolution of disputes related to, e.g., the operation, trading, leasing and financing of commercial and private aircrafts. Importantly, any disputes before The Hague CAA will be administered by the NAI.