1 Legal framework
1.1 What is the relevant legislation on arbitration in your jurisdiction? Are there any significant limitations on the scope of the statutory regime – for example, does it govern oral arbitration agreements?
The Dutch Arbitration Act governs arbitrations seated in the Netherlands and is contained in Book 4 of the Dutch Code of Civil Procedure (DCCP). The Dutch Arbitration Act came into effect on 1 December 1986; the current act is effective as of 1 January 2015. The Dutch Arbitration Act of 1986 remains in force with respect to arbitral proceedings commenced prior to 1 January 2015 and court proceedings in relation thereto.
Under Dutch arbitration law, an arbitration agreement may be entered into orally. However, if the existence of the arbitration agreement is contested by one of the parties, the Dutch Arbitration Act provides that the existence of the arbitration agreement must be proven by an instrument in writing, including electronic data (Article 1021 of the DCCP). For this purpose, an instrument in writing which provides for arbitration or which refers to standard conditions providing for arbitration is sufficient, as long as this instrument is expressly or impliedly accepted by or on behalf of the other party.
1.2 Does this legislation differentiate between domestic arbitration and international arbitration? If so, how is each defined?
The Dutch Arbitration Act is monistic and thus does not distinguish between domestic and international arbitration. The Dutch Arbitration Act is applicable to arbitrations seated in the Netherlands. It does, however, provide for some rules with respect to arbitrations seated outside the Netherlands, mainly relating to the jurisdiction of the Dutch courts and to the enforcement of foreign arbitral awards (see Articles 1074–1076 of the DCCP).
1.3 Is the arbitration legislation in your jurisdiction based on the UNCITRAL Model Law on International Commercial Arbitration?
The UNCITRAL Model Law served as an important source of inspiration for the Dutch Arbitration Act. However, the Dutch Arbitration Act is not a direct implementation of the UNCITRAL Model Law and contains various deviations therefrom.
1.4 Are all provisions of the legislation in your jurisdiction mandatory?
The Dutch Arbitration Act contains both mandatory and non-mandatory provisions. For example, the provisions with respect to the (existence of the) arbitration agreement, the jurisdiction of the Dutch state courts and the enforcement and setting aside of arbitral awards (see also questions 13 and 14) are to a large extent mandatory law. The provisions relating to the structure of the arbitral proceedings are mostly non-mandatory (often explicitly providing that the parties may deviate therefrom).
1.5 Are there any current plans to amend the arbitration legislation in your jurisdiction?
1.6 Is your jurisdiction a signatory to the New York Convention? If so, have any reservations been made?
The Netherlands is a signatory to the New York Convention. The Netherlands has made a reservation with respect to Article I(3) of the New York Convention, to the effect that it will apply the New York Convention only to the recognition and enforcement of awards made in the territory of another contracting state (the ‘reciprocity reservation').
1.7 Is your jurisdiction a signatory to any other treaties relevant to arbitration?
The Netherlands is a signatory to:
- the Energy Charter Treaty;
- the International Centre for Settlement of Investment Disputes Convention;
- the Geneva Convention on the Execution of Foreign Arbitral Awards;
- the United Nations Convention on Transparency in Treaty-based Investor-State Arbitration; and
- numerous bilateral investment treaties.
2 Arbitrability and restrictions on arbitration
2.1 How is it determined whether a dispute is arbitrable in your jurisdiction?
Article 1020(3) of the Dutch Code of Civil Procedure, which is mandatory law, provides in this respect that the arbitration agreement shall not serve to determine legal consequences that may not be freely determined by the parties. In general, this entails that disputes that form part of public policy because they have erga omnes effects are considered to be non-arbitrable.
Examples of disputes that are non-arbitrable under Dutch arbitration law include:
- disputes concerning family law;
- disputes relating to IP law;
- disputes with respect to legal entities regarding their internal decision-making process, changes in their charters or their insolvency or dissolution; and
- requests for protective or enforcement measures.
2.2 Are there any restrictions on the choice of seat of arbitration for certain disputes?
No, the Dutch Arbitration Act governs all arbitrations seated in the Netherlands.
3 Arbitration agreement
3.1 What are the validity requirements for an arbitration agreement in your jurisdiction?
If Dutch law governs an arbitration agreement, the question of whether a valid arbitration agreement exists is determined on the basis of the general law of obligations, which is incorporated in Book 6 of the Dutch Civil Code (DCC). In addition, pursuant to Article 1020(3) of the Dutch Code of Civil Procedure (DCCP), the arbitration agreement shall not serve to determine legal consequences that may not be freely determined by the parties (see question 2.1). The arbitration agreement may take the form of either:
- a submission agreement by which the parties bind themselves to submit to arbitration an existing dispute between them; or
- an arbitration clause under which parties bind themselves to submit to arbitration disputes which may arise between them.
An arbitration clause may also be set out in articles of association or regulations that are binding on the parties.
Additional requirements apply to arbitration agreements concluded between a professional party and a consumer, when they are included in the general terms and conditions of the professional party. Pursuant to Article 6:236(n) of the DCC, the consumer must be given a period of one month from the professional party invoking the arbitration agreement to initiate proceedings before the competent court. The arbitration clause is void if the arbitration clause in the general terms and conditions does not comply with this requirement.
3.2 Are there any provisions of legislation or any other legal sources in your jurisdiction concerning the separability of arbitration agreements?
Pursuant to Article 1053 of the DCCP, an arbitration agreement shall be considered and decided upon as a separate agreement. This means that the tribunal has the power to assess the existence and validity of the main agreement separately from the validity of the arbitration agreement concluded in connection with the main agreement, irrespective of whether the two agreements are included in one document and irrespective of whether they are presented as one agreement. The same applies to a state court deciding on the validity of an arbitration agreement.
3.3 Are there provisions on the seat and/or language of the arbitration if there is no agreement between the parties?
The arbitral tribunal will determine the seat of the arbitration if the parties have failed to do so (Article 1037(1) of the DCCP). The tribunal will often do so at the beginning of the proceedings and after hearing the parties in this respect. Should the tribunal also fail to determine the seat of the arbitration, the place where the award is made, as stated by the arbitral tribunal in the award, qualifies as the seat of the arbitration (Article 1037(2) of the DCCP).
The Dutch Arbitration Act does not contain a provision on the language of the arbitration. On the basis of Article 1036(1) of the DCCP, the tribunal will determine the manner in which the arbitration shall be conducted, to the extent that this has not been provided for in the agreement between the parties (see question 8.6), which may also include the language of the arbitration.
4 Objections to jurisdiction
4.1 When must a party raise an objection to the jurisdiction of the tribunal and how can this objection be raised?
An objection to the jurisdiction of the tribunal on the ground of a lack of a valid arbitration agreement must be raised with the arbitral tribunal "before raising any other defence" (Article 1052(2) of the DCCP). In practice, this means that the objection to jurisdiction must be raised in the first (substantial) submission (in most cases the statement of defence). If the defendant does not invoke the lack of jurisdiction of the arbitral tribunal in a timely manner, or does not raise the issue at all, the right to raise such objection later on – either in the arbitration proceedings or in subsequent proceedings with the state courts – is forfeited, unless this objection is made on the ground that the dispute is not arbitrable.
On the basis of Article 1022 of the DCCP, a Dutch court seized of a dispute in respect of which an arbitration agreement has been concluded shall declare that it has no jurisdiction if a party invokes the existence of the agreement before submitting a defence, unless the agreement is invalid.
4.2 Can a tribunal rule on its own jurisdiction?
Article 1052(1) of the DCCP provides that the arbitral tribunal has the power to decide on its own jurisdiction.
4.3 Can a party apply to the courts of the seat for a ruling on the jurisdiction of the tribunal? In what circumstances?
Dutch law contains no specific provisions in this respect, but it has been argued in Dutch literature that a party can indeed request a declaratory judgment on the validity of the arbitration agreement. However, the following circumstances will likely stand in the way of such a request:
- Arbitration proceedings are already pending; and
- the jurisdictional issue has been put to the tribunal; or
- the party seeking the declaration has already forfeited its right to raise the jurisdictional defence in the arbitration proceedings.
Further, the parties may request the setting aside of an award in which the arbitrators have assumed jurisdiction on the basis of Article 1065(1) of the DCCP, after which the court will review in full whether a valid arbitration agreement exists.
5 The parties
5.1 Are there any restrictions on who can be a party to an arbitration agreement?
The Dutch Arbitration Act contains no restrictions in this respect. This means that any party with the legal capacity to enter into a contract may be a party to an arbitration agreement.
5.2 Are the parties under any duties in relation to the arbitration?
The Dutch Arbitration Act imposes certain obligations on the parties to the arbitration, including:
- the duty to prevent unreasonable delay of the proceedings (Article 1036(3) of the DCCP);
- the duty to object without unreasonable delay if a party becomes (or should have become) aware that any action has been taken in violation of:
- certain Dutch legal provisions concerning arbitration;
- the arbitration agreement; or
- any order, decision or measure imposed by the tribunal (Article 1048a of the DCCP); and
- the duty to comply with the arbitral award once it has been rendered (which follows from the obligation to comply with the arbitration agreement).
If the parties have agreed to apply certain arbitration rules, several additional duties may arise from these rules, which – according to Article 1020(6) of the DCCP – will be deemed to form part of the arbitration agreement.
5.3 Are there any provisions of law which deal with multi-party disputes?
The Dutch Arbitration Act contains no specific provisions on multi-party arbitration. However, it is possible for an arbitration agreement governed by Dutch law to be concluded between more than two parties.
6 Applicable law issues
6.1 How is the law of the arbitration agreement determined in your jurisdiction?
The law applicable to the arbitration agreement must be distinguished from the law applicable to the main agreement (see question 3.2), which means that it is possible for an arbitration agreement to be governed by a different law from the law of the main agreement.
First, if the seat of the arbitration is in the Netherlands, the arbitration agreement is governed by the Dutch Arbitration Act (Article 1073 of the DCCP). The relevant provisions in this respect concern:
- formal requirements regarding the validity of the arbitration agreement (Article 1020 of the DCCP); and
- rules of evidence (Article 1021 of the DCCP).
Second, Article 10:166 of the Dutch Civil Code provides that there is a valid arbitration agreement (as a matter of substantive law) if the arbitration agreement is valid according to:
- the law chosen by the parties with regard to the arbitration agreement itself (if any);
- the law of the seat of the arbitration; or
- the law that applies to the main agreement to which the arbitration agreement relates.
6.2 Will the tribunal uphold a party agreement as to the substantive law of the dispute? Where the substantive law is unclear, how will the tribunal determine what it should be?
Yes, the tribunal will uphold a party agreement as to the substantive law of the dispute. If the parties have not made a clear decision as to the substantive law applicable to the main agreement, the tribunal shall decide in accordance with the rules of law that it considers appropriate (Article 1054(2) of the DCCP). The tribunal is not bound by any rules of private international law. However, in practice, the tribunal will generally apply accepted principles of private international law.
7 Consolidation and third parties
7.1 Does the law in your jurisdiction permit consolidation of separate arbitrations into a single arbitration proceeding? Are there any conditions which apply to consolidation?
Pursuant to Article 1046(1) of the DCCP, separate arbitrations can be consolidated into a single arbitration proceeding, unless the parties have agreed otherwise. Article 1046(1) of the DCCP provides for two alternative forms of consolidation:
- consolidation by a third party that is appointed by the parties; or
- if no third party is appointed, consolidation by the provisional relief judge of the Amsterdam District Court.
The difference between these two forms is that a third party appointed by the parties can consolidate arbitration proceedings pending in the Netherlands with arbitration proceedings pending within or outside the Netherlands. The provisional relief judge can consolidate arbitration proceedings pending in the Netherlands only with other arbitration proceedings pending within the Netherlands. It is generally accepted that it is possible to consolidate more than two arbitration proceedings.
Pursuant to Article 1046(2) of the DCCP, consolidation may be ordered only:
- insofar as it does not cause unreasonable delay in the pending proceedings, also in view of the stage that they have reached; and
- if the arbitration proceedings are so closely connected that good administration of justice renders it expedient to hear and determine them together to avoid the risk of irreconcilable decisions resulting from separate proceedings.
Additionally, all arbitration proceedings that are to be consolidated should be pending at the moment the request for consolidation is made.
7.2 Does the law in your jurisdiction permit the joinder of additional parties to an arbitration which has already commenced?
Yes, on the basis of Article 1045(1) of the DCCP, a third party that has an interest in arbitral proceedings may be allowed to join or intervene in arbitral proceedings that have already commenced, unless the parties have agreed otherwise. The third party that wishes to join the arbitration may file a written request to that effect with the tribunal.
The request will be permitted only if the arbitration agreement concluded by the parties also applies to the third party. In this respect, it is also sufficient if the parties and the third party refer to the same arbitration regulations in arbitration agreements concluded among them, in which joinders are permitted. Additionally, the tribunal can permit the joinder only if the third party has an interest in the arbitration.
Article 1045a of the DCCP also allows one of the parties to pending arbitration proceedings to request the tribunal in writing to be allowed to implead to the proceedings a third party which would have to bear any negative consequences resulting from the arbitration for the impleading party. The tribunal may grant such a request if:
- the same arbitration agreement also applies (or comes to apply) to the third party;
- it does not prima facie consider unlikely the possibility that the third party will actually have to bear any negative consequences resulting from the award; and
- there would be no unreasonable delay to the pending proceedings, also in view of the stage they have reached.
7.3 Does an arbitration agreement bind assignees or other third parties?
In general, third parties are not bound by an arbitration agreement to which they are not a party.
However, in certain situations third parties can be bound by such arbitration agreements. For example, the following third parties may be bound by the arbitration agreement:
- a third party that fails to object to the jurisdiction of the tribunal after its counterparty has initiated arbitration proceedings;
- assignees to which the main agreement that contains the arbitration agreement has been assigned (Article 6:142 of the Dutch Civil Code (DCC));
- the subrogated party in case of subrogation (Articles 6:142 and 6:145 of the DCC); and
- a Dutch bankruptcy trustee of a bankrupt legal entity that entered into an arbitration agreement before it was declared bankrupt.
8 The tribunal
8.1 How is the tribunal appointed?
The tribunal is appointed in the manner agreed upon by the parties (Article 1027(1) of the DCCP), which agreement may, for example, be embodied either in the arbitration agreement itself or in the arbitration rules designated by the parties to govern the arbitration (if any). If the parties have not agreed on a method for appointment, Dutch law provides that the parties shall appoint the tribunal jointly (Article 1027(1) of the DCCP). The tribunal shall in principle be appointed within three months of the initiation of the arbitration (Article 1027(2) of the DCCP) – that is, the moment that one party informs another party in writing that it is submitting the relevant dispute to arbitration (Article 1025(1) of the DCCP).
8.2 Are there any requirements as to the number or qualification of arbitrators in your jurisdiction?
Dutch law prescribes that a tribunal be composed of one or any other odd number of arbitrators (Article 1026(1) of the DCCP). If the parties have not agreed and cannot agree upon the number of arbitrators, either party can request the preliminary relief judge of the state court to determine this number (Article 1026(2) of the DCCP).
The Dutch Arbitration Act formulates two eligibility requirements for arbitrators – an arbitrator must be:
- a natural person; and
- legally competent (Article 1023 of the DCCP).
The parties can agree upon further desired qualifications of an arbitrator as they see fit. However, a person may not be excluded from appointment as an arbitrator because of his or her nationality, unless the parties have agreed otherwise in order to safeguard the impartiality and independence of the arbitrators – for example, to ensure that the tribunal's chair will not have the nationality of either party (Article 1023 of the DCCP).
8.3 Can an arbitrator be challenged in your jurisdiction? If so, on what basis? Are there any restrictions on the challenge of an arbitrator?
Either party can challenge an arbitrator if justifiable doubts exist regarding his or her impartiality or independence (Article 1033(1) of the DCCP). This standard constitutes mandatory law, which means that the parties cannot agree to deviate therefrom. Importantly, whether such justifiable doubts exist is determined on an objective basis; mere subjective doubts as to the arbitrator's impartiality and/or independence will not suffice.
There are some restrictions to the right to challenge an arbitrator, as follows:
- If grounds for challenging an arbitrator exist, those grounds must be put forward in the form of a challenge of the relevant arbitrator in a timely manner. If a party fails to do so, it forfeits the right to put forward those grounds at a later point in the arbitral proceedings or before the state courts (Article 1035(8) of the DCCP). In this regard, Article 1035(1) of the DCCP provides that those grounds must be put forward as part of a challenge within four weeks of the discovery of the reason for the challenge. However, the parties can agree upon different time limits from this four-week period (Article 1035(6) of the DDCP). Such agreement can, for example, follow from the arbitration rules designated by the parties.
- If a party has itself appointed (either on its own or jointly) the arbitrator whom it now wishes to challenge, it can do so only on grounds that it was not yet aware of at the time of the appointment (Article 1033(2) of the DCCP).
- If the arbitrator was appointed by a third party (eg, a state court), a party cannot challenge the arbitrator if it acquiesced in his or her appointment, unless the challenge is based on grounds which became known to the challenging party only at a later point in time (Article 1033(3) of the DCCP)
8.4 If a challenge is successful, how is the arbitrator replaced?
If a challenge is successful, the arbitrator will be replaced using the same appointment method that was employed for the appointment of the challenged arbitrator, unless the parties agree upon a different method (Article 1035(3) of the DCCP). A successful challenge suspends the arbitration proceedings by operation of law until the relevant arbitrator is replaced.
8.5 What duties are imposed on arbitrators? Are these all imposed by legislation?
Dutch legislation imposes certain duties on arbitrators. Most fundamentally, the arbitrators must:
- decide on the dispute brought before them in accordance with the applicable decision standard;
- render an award in writing; and
- deliver that award to the parties (see Articles 1054, 1057(1) and (2) and 1058(1) of the DCCP).
Moreover, the tribunal must treat the parties to the dispute equally (Article 1036(2) of the DCCP). This means that it must:
- give each party the opportunity:
- to present and substantiate its case; and
- to adequately respond to the arguments and documentation put forward by the other party.
The tribunal must also prevent unreasonable delay of the proceedings (Article 1036(2) of the DCCP) – for example, by enforcing time limits it has previously set.
Further duties may be laid down in the agreement between the arbitrator and the parties. Under Dutch law, the agreement between the arbitrator and the parties qualifies as an agreement for the provision of services (overeenkomst van opdracht) (Article 7:400 of the Dutch Civil Code (DCC)). This implies that the arbitrator must exercise the care of a good contractor (Article 7:401 of the DCC). Arbitrators need not inform or report to the parties other than with respect to:
- the envisaged procedure for the arbitration;
- the reasons for their award; and
- any decisions taken throughout the procedure (depending on the nature of those decisions)(Dutch Supreme Court, 29 January 2010, ECLI:NL: HR:2010:BK2007, Ground 3.5.1).
8.6 What powers does an arbitrator have in relation to: (a) procedure, including evidence; (b) interim relief; (c) parties which do not comply with its orders; (d) issuing partial final awards; (e) the remedies it can grant in a final award and (f) interest?
(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.
This is a matter of the law governing the relevant dispute on the merits.
8.7 How may a tribunal seated in your jurisdiction proceed if a party does not participate in the arbitration?
If the defendant fails to participate in the arbitration without asserting any well-founded reasons for doing so, the tribunal can proceed with issuing an award in which it grants the claimant's claim, unless this appears to the tribunal to be unlawful or unfounded. Prior thereto, the tribunal can request the claimant to substantiate one or more of its assertions (Article 1043a(2)(3) of the DCCP).
If the claimant initiates the arbitration, but subsequently fails to assert or substantiate its claims (and thus to participate) without asserting any well-founded reasons for doing so, the tribunal can (but is not obliged to) end the arbitration proceedings (Article 1043a(1) of the DCCP).
8.8 Are arbitrators immune from liability?
Although the Dutch Arbitration Act is silent on this issue, Dutch case law shows that arbitrators are not immune from liability. If the relationship between an arbitrator and the parties to the dispute is governed by Dutch law, an arbitrator is liable towards one or both parties if the contested conduct was:
- intentional or the result of wilful recklessness; or
- a serious dereliction of duties on the side of the arbitrator (Dutch Supreme Court, 4 December 2009, ECLI:NL: HR:2009:BJ7834, Ground 3.6).
This is a high standard to meet. The setting aside of an arbitral award in itself does not suffice to establish the liability of an arbitrator.
9 The role of the court during an arbitration
9.1 Will the court in your jurisdiction stay proceedings and refer parties to arbitration if there is an arbitration agreement?
If a dispute falls within the scope of a valid arbitration agreement and a party to that arbitration agreement nevertheless initiates proceedings before the Dutch court, the Dutch court will declare that it has no jurisdiction to hear the dispute if the other party to the arbitration agreement invokes the lack of jurisdiction of the Dutch court before all other defences (Article 1022 of the DCCP). Instead of staying the proceedings and referring the parties to arbitration, this decision – which can be appealed – ends the proceedings before the Dutch court.
9.2 Does the court in your jurisdiction have any powers in relation to an arbitration seated in your jurisdiction and/or seated outside your jurisdiction? What are these powers? Under what conditions are these powers exercised?
With respect to arbitration proceedings seated in the Netherlands, the Dutch Arbitration Act assigns certain powers to the Dutch courts, including the following:
- at the request of either party, to:
- determine the number of arbitrators if the parties have not agreed and cannot agree on this (Article 1026(2) of the Dutch Code of Civil Procedure (DCCP));
- appoint a chair of the tribunal if parties have agreed upon an even number of arbitrators and the arbitrators already appointed fail to appoint a chair (Article 1026(3)(4) of the DCCP);
- appoint any arbitrator not appointed within three months of the initiation of the arbitration (or any other period agreed upon by the parties for that purpose – see question 8.1) (Article 1027(2) of the DCCP); and
- appoint the member(s) of the tribunal if, based on the arbitration agreement, one of the parties thereto has a privileged position with respect to their appointment and the other party requests the court to carry out this appointment instead (Article 1028 of the DCCP);
- at the request of the relevant arbitrator(s) or the parties, to release one or more arbitrator(s) from their obligations under their assignment to act as an arbitrator (Article 1029 of the of the DCCP);
- at the request of either party, to decide upon a challenge of an arbitrator (see question 8.3);
- at the request of either party, to hear a witness that refuses to be heard voluntarily in the arbitration (Article 1041a of the DCCP);
- at the request of the tribunal, to request information about foreign law (Article 1044(1) of the DCCP);
- at the request of either party, to order the consolidation of arbitration proceedings (see question 7.1); and
- to cancel, suspend or limit a monetary penalty for non-compliance granted by a tribunal, provided that the tribunal's mandate is no longer in effect (Article 1056 of the DCCP).
In addition, for arbitrations with a seat either in or outside of the Netherlands, the parties can seek interim relief from a Dutch court in connection with the arbitration proceedings. However, if one of the parties timely invokes the arbitration agreement, the Dutch court will accept jurisdiction in respect of such a request only if the requested relief cannot, or cannot timely, be obtained in the arbitration proceedings (Articles 1022c and 1074d of the DCCP).
For the powers of the court with respect to the enforcement, suspension or annulment of both foreign and domestic awards, see questions 13 and 14.
9.3 Can the parties exclude the court's powers by agreement?
Most of the powers granted to the Dutch courts operate as fall-back provisions and cannot be excluded by agreement. However, certain powers can be contractually excluded, such as:
- the power to request information about foreign law (Article 1044(1) of the DCCP); and
- the power to order the consolidation of arbitration proceedings (Article 1046 of the DCCP).
10.1 How will the tribunal approach the issue of costs?
The Dutch Arbitration Act does not regulate the issue of costs. The parties can agree upon the allocation of costs in their arbitration agreement – for example, by reference to certain arbitration rules, in the absence of which the allocation of costs is at the tribunal's discretion. The tribunal will generally order the unsuccessful party to compensate the costs of the prevailing party, whether or not up to a reasonable amount (eg, see Article 57(2) of the Arbitration Rules of the Netherlands Arbitration Institute).
10.2 Are there any restrictions on what the parties can agree in terms of costs in an arbitration seated in your jurisdiction?
No, although arbitrators can in practice be expected to limit a cost order to an amount that they consider reasonable (eg, see Article 56 of the Arbitration Rules of the Netherlands Arbitration Institute, which provides for "reasonable compensation" of costs that "were necessary in the arbitral tribunal's opinion").
11.1 Is third-party funding permitted for arbitrations seated in your jurisdiction?
Yes, this is permitted and occurs in practice.
12.1 What procedural and substantive requirements must be met by an award?
Dutch law prescribes that the tribunal decides by simple majority (unless otherwise agreed upon by the parties) (Article 1057(1) of the DCCP).
An award must be in writing and must be signed by the arbitrators (either wet-ink or electronically; see Article 1072b(3) of the DCCP). If a minority of the arbitrators refuse to sign the award, this in itself does not render the award invalid, provided that this is explicitly stated in the award signed by the majority of the arbitrators (Article 1057(3) of the DCCP).
The award must contain at least the following information (Article 1057(4) of the DCCP):
- the tribunal's decision and the reasons underlying that decision;
- the names(s) and domicile of the arbitrator(s);
- the names and domiciles of the parties to the arbitration;
- the place where the award was rendered (the seat of the arbitration); and
- the date of the award.
If (part of) the information listed in the second to fifth points above has been included incorrectly or is missing, a party can request the tribunal in writing to correct such omission within three months of dispatch of the award to the parties (or any other time limit as agreed upon by the parties).
Article 1057(5) of the DCCP provides three exceptions to the requirement that the tribunal's decision be reasoned, as follows:
- The award exclusively concerns the determination only of the quality or condition of goods;
- The award concerns the recording of a settlement; or
- The parties agree in writing, after the arbitration has commenced, that no grounds need be given for the decision.
The tribunal must further ensure that, as soon as possible after the award is made:
- the original or a copy certified by an arbitrator or third party designated by the parties is dispatched to the parties; and
- the original award is deposited with the registry of the district court of the seat of arbitration, if the parties have agreed on such deposit (Article 1058(1) of the DCCP).
12.2 Must the award be produced within a certain timeframe?
Dutch law contains no specific provisions in this respect. The parties can agree upon a certain timeframe within which the tribunal must render its final award.
13 Enforcement of awards
13.1 Are awards enforced in your jurisdiction? Under what procedure?
Yes, the Dutch courts are generally considered to be pro-enforcement. A party wishing to enforce an award rendered in arbitration proceedings seated in the Netherlands can request leave for enforcement (exequatur) from the preliminary relief judge of the district court of the seat of arbitration (Article 1062 of the DCCP). In such case, leave for enforcement can be (and is generally) granted ex parte, after which the award can be enforced.
A party wishing to enforce an award that was rendered in arbitration proceedings seated outside of the Netherlands must also apply for leave for enforcement. In this respect, Dutch law distinguishes between the recognition and enforcement of:
- awards based on a treaty to which both the Netherlands and the country of origin of the award are a party (of which the New York Convention is a well-known example) (Article 1075 of the DCCP); and
- awards where no such treaty applies, because they were rendered in a country that is party to no such treaty (Article 1076 of the DCCP).
Under Article 1076 of the DCCP, a request for recognition or enforcement must be submitted to the competent court of appeal. Unlike the default situation with respect to an award rendered in arbitration proceedings with a seat in the Netherlands, the court of appeal will rule on the application only after having heard the parties. In reviewing the request, the court of appeal will assess whether grounds for refusal apply (which are based on the grounds for refusal of enforcement in the New York Convention). The court of appeal's decision regarding a request based on Article 1076 of the DCCP can be appealed to the Dutch Supreme Court, regardless of whether that request is granted or denied.
The procedure under Article 1075 of the DCCP is largely similar to that under Article 1076, although the relevant treaty may provide for specific differences. With respect to the most important treaty in the sense of Article 1075 of the DCCP (ie, the New York Convention), a crucial difference is that if the request for leave of enforcement is based on the New York Convention and is granted, such decision cannot be appealed before the Dutch Supreme Court (whereas the court of appeal's decision can be appealed if the request is denied). This asymmetry can be lifted under exceptional circumstances, such as where the impossibility to lodge a cassation appeal would place the defendant in the exequatur proceedings in such a disadvantageous procedural position vis-à-vis its counterparty that its right to a fair trial under Article 6 of the European Convention on Human Rights would be infringed.
14 Grounds for challenging an award
14.1 What are the grounds on which an award can be challenged, appealed or otherwise set aside in your jurisdiction?
Arbitral appeal is possible only to the extent that the parties to the arbitration proceedings have so agreed (Article 1061b of DCCP).
Dutch law provides for two possibilities to challenge an award rendered in arbitration proceedings with a seat in the Netherlands before state courts: setting aside and revocation (Article 1064 of the DCCP).
Article 1065 of the DCCP provides an exhaustive list of grounds that can serve as a basis for a setting-aside action, as follows:
- the absence of a valid arbitration agreement;
- the tribunal not having been constituted in accordance with the applicable rules;
- the tribunal having violated its mandate;
- the award not having been signed by all arbitrators or lacking any (proper) reasoning; or
- the award (or the process leading up thereto) violating public policy.
Article 1068 of the DCCP provides an exhaustive list of grounds that can serve as a basis for a revocation action:
- The award was wholly or partially based on fraud, which was committed during the arbitration by (or with the knowledge of) the other party and discovered only after the award was rendered;
- The award was wholly or partially based on documents which, after the award was rendered, are discovered to have been forged; or
- A party obtained documents after the award was rendered that would have influenced the decision of the tribunal, but were withheld as a result of the acts of the other party.
Both the action to set aside an award and the action to revoke an award must be brought before the competent court of appeal, and decisions of the court of appeal can subsequently be appealed before the Dutch Supreme Court.
14.2 Are there are any time limits and/or other requirements to bring a challenge?
A claim to set aside an award must be brought within three months of dispatch of the award by the tribunal to the parties (Article 1064a(2) of the DCCP). As dispatch of the award is deemed to have taken place four weeks after the date of the judgment (Article 1058(2) of the DCCP), this three-month period starts to run four weeks after the date of the judgment (although some courts have not taken this four-weeks-period into account). If the award is served on the award debtor after leave for enforcement has been obtained, another three-month period begins to run, during which an action aimed at setting aside can be brought (regardless of whether the first three-month period has already expired).
A revocation action must be brought within three months of discovery of the alleged fraud or forgery or withholding of documents (Article 1068(2) of the DCCP).
If the award can still be appealed in arbitration, no actions aimed at setting aside or revocation can be brought just yet. In that case, the three-month period for the setting aside of an award starts to run only as from the moment when the appeal period has expired unused or if the parties have waived their right to appeal in writing (Article 1061l(3) of the DCCP).
Actions aimed at setting aside or revoking an interim award must be brought together with an action directed against the (partial) final award.
14.3 Are parties permitted to exclude any rights of challenge or appeal?
The parties have the right to appeal an award in arbitration only if they have explicitly so agreed (see question 14.1).
The possibility to challenge an award by way of an action at the court of appeal aimed at setting aside or revoking the award cannot be excluded.
However, in case of a setting-aside action only, the possibility to appeal the court of appeal's decision before the Dutch Supreme Court can be contractually excluded, unless one of the parties to the arbitration agreement is a consumer (Article 1064a(5) of the DCCP).
15.1 Is arbitration seated in your jurisdiction confidential? Is a duty of confidentiality found in the arbitration legislation?
Dutch law contains no specific provisions in this respect, but it is generally accepted that arbitration proceedings conducted in the Netherlands are confidential. This is reflected, for example, in Article 6 of the Netherlands Arbitration Institute rules, which provides that the arbitration shall be confidential. Consequently, it is generally assumed that, unless the parties have agreed otherwise, both the parties and the tribunal are in principle under a duty of confidentiality. In the legislative history of the 2015 Dutch Arbitration Act, however, it was observed that arbitrations "with a public law content" could constitute an exception to the general rule of confidentiality.
Court proceedings that relate to (or ensue from) arbitration proceedings are in principle not confidential; but Article 29 of the Dutch Code of Civil Procedure in theory allows for certain exceptions to that principle if and to the extent the court considers such exceptions appropriate.
15.2 Are there any exceptions to confidentiality?
Dutch arbitration law does not contain specific provisions in this respect. However, see question 15.1 for a possible exception to the general principle of confidentiality.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.