Answer ... (a) Procedure, including evidence?
Arbitration proceedings will be conducted:
- in the manner agreed upon by the parties (the parties can refer to certain arbitration rules for this purpose); or
- in the absence of such an agreement, in the manner determined by the tribunal (Article 1036(1) of the DCCP).
The production, admissibility and evaluation of evidence are at the tribunal’s discretion, unless the parties agree otherwise. The same applies to the division of the burden of proof (Article 1039(1) of the DCCP).
The tribunal has certain powers with respect to the conduct of the proceedings, as follows (including the collection of evidence), in each case unless the parties have agreed otherwise:
- to order document production (Article 1040(2) of the DCCP);
- to hear fact witnesses and expert witnesses (Article 1041(1) of the DCCP);
- to appoint experts (Article 1042(1) of the DCCP);
- to conduct site visits (Article 1042a(1) of the DCCP);
- to request information about foreign laws (Article 1044(1) of the DCCP);
- to allow for the joinder of a third party (Article 1045(1) of the DCCP) (see question 7.2);
- to allow a party to implead a third party (Article 1045a(1) of the DCCP) (see question 7.2);
- to order the consolidation of proceedings (Article 1046(1) of the DCCP) (see question 7.1); and
- to determine when the award will be rendered (Article 1048 of the DCCP).
(b) Interim relief?
The tribunal can order interim relief in the course of the arbitration proceedings (Article 1043b(1) of the DCCP). If the parties have so agreed, they can also initiate separate arbitration proceedings for the sole purpose of ordering interim relief – that is, without arbitration proceedings in the main action being pending (Article 1043b(2) of the DCCP).
There is no exhaustive list of types of interim relief that tribunals can order, but they cannot order pre-judgment attachments (which can exclusively be ordered by state courts).
(c) Parties which do not comply with its orders?
A tribunal has the power to impose a monetary penalty for non-compliance in cases in which a state court would likewise be competent to impose such a monetary penalty (Article 1056 of the DCCP). Moreover, during the arbitration, a tribunal can draw such adverse inferences from the relevant party’s non-compliance as it considers appropriate.
If the tribunal orders interim relief, its decision in this respect in principle qualifies as an arbitral award (unless the tribunal states otherwise in its decision) (Article 1043b(4) of the DCCP), which can be enforced in the Netherlands through the state courts (see question 13). However, if the interim relief has been granted in the form of an ‘order’ (see question 8.6(d)), this does not apply.
(d) Issuing partial final awards?
A tribunal can issue a final award, partial award or interim award (Article 1049 of the DCCP).
In a partial award, only part of the claimant’s claim is definitely settled, while the decision on the remainder of the claim is deferred. For example, the tribunal can grant a declaration that the defendant is liable for certain conduct, but defer its decision on the accompanying claim for damages.
In a ‘pure’ interim award, the tribunal can, for example, decide on procedural matters and evidence issues and grant interim relief (such decisions can also be – and regularly are – given as an ‘order’, which need not meet the substantive requirements of an award (see question 12.1). Such an interim award cannot be enforced or challenged (see question 13)).
(e) The remedies it can grant in a final award?
This is a matter of the law governing the relevant dispute. Dutch arbitration law does not in itself stand in the way of a tribunal granting a certain type of remedy.
However, it is not possible under Dutch substantive law to grant punitive damages and an award in which the tribunal has granted punitive damages is considered to violate Dutch public policy, on the basis of which the Dutch courts may refuse to enforce the award in the Netherlands.
(f) Interest?
This is a matter of the law governing the relevant dispute on the merits.