In this overview, we will discuss the highlights of the New Dutch Arbitration Act and of the New Arbitration Rules of the Netherlands Arbitration Institute ("NAI"), which both entered into force on 1 January 2015 in relation to arbitrations commenced on or after 1 January 2015 (Article VI, paragraph 1, of the implementation Act and Article 62, paragraph 2 and 3, New NAI Rules). The New Dutch Arbitration Act is based on proposed amendments to the former Dutch Arbitration Act, which were drafted by a group of arbitration specialists chaired by Professor Dr. Albert Jan van den Berg. These proposed amendments were presented to the Minister of Justice in 2006. However, it took a while before the Dutch Government presented a Bill for a new Dutch Arbitration Act to Parliament.
The Bill dates from 15 April 2013 and was accepted by Parliament on 27 May 2014. Although the New Dutch Arbitration Act is not based on the UNCITRAL Model Law on International Commercial Arbitration (2006), the Dutch legislator, in the preparations for the New Dutch Arbitration Act, did look to the UNCITRAL Model Law (2006) as well as arbitration acts of other countries, such as Switzerland and England. The New Dutch Arbitration Act forms part of the Dutch Code of Civil Procedure ("DCCP") and is included in the fourth book thereof (Articles 1020-1076 DCCP). Apart from the provisions regarding the recognition and enforcement of foreign arbitral awards, the New Dutch Arbitration Act - i.e. Title One (Arbitration in the Netherlands) - is applicable if the place of arbitration is located within the Netherlands, all this on a monistic basis, i.e., without a distinction between national and international arbitrations.
2. Background of the New Dutch Arbitration Act; facilitating arbitration
The former Dutch Arbitration Act dates from 1 December 1986 and, although it functioned well, was considered outdated in some respects. In this respect, it is worth mentioning that the former Dutch Arbitration Act, at the time it came into force, was considered revolutionary, in that it provided for, inter alia, arbitral referee proceedings and for the consolidation of arbitration proceedings pending in the Netherlands. Concepts similar to the arbitral referee proceedings as contained in the former Dutch Arbitration Act or - what we would now refer to as - emergency arbitration were adopted by arbitration institutes only many years after the former Dutch Arbitration Act introduced arbitral referee proceedings (e.g., Appendix II to the SCC Arbitration Rules 2010 and Article 29 of the ICC Arbitration Rules 2012).
To keep up with the new developments in arbitration, especially in international arbitration, the legislator considered it necessary to update the - now former - Dutch Arbitration Act. Overall, in the New Dutch Arbitration Act, the legislator granted the parties more autonomy to shape the arbitration as they deem fit. In fact, only a few provisions in the Dutch Arbitration Act, all relating to due process, are of a mandatory nature.
3. Highlights of the New Dutch Arbitration Act
A full unofficial English translation of the text of the New Dutch Arbitration Act will soon be available on the website of the Netherlands Arbitration Institute (http:/www.nai-nl.org/en/). The below summarizes the highlights of the amendments incorporated in the New Dutch Arbitration Act.
[arbitration agreement] The provisions regarding arbitration agreements contain several noteworthy amendments. Firstly, Article 236 of Book 6, part n, of the Dutch Civil Code (“DCC”) was amended such that an arbitration clause contained in general terms and conditions is no longer binding if it does not provide the consumer with an option to choose to have the dispute decided by the courts. Secondly, the new Article 167 of Book 10 DCC - based on Article 177, paragraph 2, of the Swiss Private International Law Act - provides that a State cannot invoke its internal law in order to dispute the validity of the arbitration agreement in case the other party was neither aware nor should have been aware of such internal law. Thirdly, the new Article 166 of Book 10 DCC - based on Article 178, paragraph 2, of the Swiss Private International Law Act - implements the so-called favor-principle as to the substantive law applicable to the arbitration agreement. It provides that an arbitration agreement is valid if it is valid according to the law chosen by the parties or to the law of the place of arbitration or, absent a choice of law, to the law that applies to the legal relationship to which the arbitration agreement relates. It should be noted that the broadly worded writing requirement of Article 1021 DCCP was not amended and, also under the New Dutch Arbitration Act, applies next to the substantive law applicable to the arbitration agreement.
[emergency arbitration] The emergency arbitration as maintained in the New Dutch Arbitration Act (Article 1043b, paragraph 2, DCCP) is still up to date. Firstly, the emergency arbitrator may render a decision in the form of an award (Article 1043b, paragraph 5, DCCP). Secondly, the Dutch regime does not oblige any of the parties to commence arbitral proceedings on the merits within a certain time limit after the rendering of the arbitral award in the arbitral emergency proceedings (as opposed to, for example, Appendix V, Articles 1, paragraph 6, and 6, paragraph 6(a), ICC Arbitration Rules 2012). Of course, if a party does commence arbitral proceedings on the merits, the arbitral tribunal in the arbitral proceedings on the merits is not bound by the arbitral award rendered by the emergency arbitrator.
[procedural matters] Article 1035, paragraph 7, DCCP specifically allows for institutional - as opposed to court - challenges, which is often provided for by arbitration institutes (such as the Netherlands Arbitration Institute; see below). As to the course of proceedings of the arbitration itself, Article 1036, paragraph 2 and 3, DCCP explicitly lays down the principles of due process and prevention of unreasonable delay. In addition, Article 1072b DCCP provides a statutory framework for e-Arbitration, including electronic arbitral awards.
[consolidation of arbitrations] The new Dutch Arbitration Act slightly amended the provision on consolidation of arbitral proceedings. In respect of arbitral proceedings pending in the Netherlands, a party may request that a third person designated to that end by the parties order consolidation with other arbitral proceedings pending within or outside the Netherlands, unless the parties have agreed otherwise (Article 1046, first sentence of paragraph 1, DCCP). In the absence of a third person designated to that end by the parties, the provisional relief judge of the district court of Amsterdam may be requested to order consolidation of arbitral proceedings pending in the Netherlands with other arbitral proceedings pending in the Netherlands, unless the parties have agreed otherwise (Article 1046, second sentence of paragraph 1, DCCP).
[arbitral awards] The New Dutch Arbitration Act also contains several practical - but major - amendments that relate to the final stages of the arbitration. Firstly, Article 1057, paragraph 5, DCCP allows the parties to agree, after the arbitration has been commenced, that arbitrators are not to reason the award. Secondly, Article 1058 DCCP abandons the requirement that the tribunal deposit the award with the registry of the relevant court, unless the parties agree to such requirement. The date of dispatch of the award is now determinative with regard to the time limits for instituting, for example, setting aside proceedings (see Article 1064a, paragraph 2, DCCP).
[limited/streamlined court involvement] The Dutch legislator sought to limit and streamline the Dutch courts' involvement in - while increasing the support provided by courts to - arbitrations. The Dutch courts' assistance to arbitrators is explicitly limited to what arbitrators are not able to (timely) do themselves (Articles 1022c and 1074d DCCP). However, such court assistance - for example, the examination of witnesses - is also available with regard to arbitrations that take place outside the Netherlands (Article 1074 c DCCP). Setting aside proceedings and enforcement proceedings regarding foreign arbitral awards are streamlined to one factual instance only, before the Courts of Appeal (Articles 1064, paragraph 1, and 1075, paragraph 2, DCCP). More importantly, Article 1064a, paragraph 5, DCCP introduces an opt-out possibility with regard to appeal to the Supreme Court in setting aside proceedings (unless one of the parties is a consumer). In addition, Article 1065, paragraph 4, DCCP implements settled case law that only a serious non-compliance by a tribunal with its mandate can provide a ground to set aside an award. In case an award is set aside - other than on the basis of a lack of a valid arbitration agreement - the New Dutch Arbitration Act abandons the rule that the relevant national court's competence revives and states that the arbitration agreement remains in force (Article 1067 DCCP).
[remission] Finally, we note that Article 1065a DCCP introduces the remission of a case to a tribunal by the Court of Appeal in setting aside proceedings. The Court of Appeal may suspend the setting aside proceedings in order to allow the tribunal to rectify a ground for setting aside by reopening the arbitration and, after having heard both parties, rendering a new award that replaces the award in relation to which these setting aside proceedings were instituted. Subsequently, the Court of Appeal will render its judgment in the setting aside proceedings, taking into account the new award.
4. Highlights of the New NAI Arbitration Rules
The New Dutch Arbitration Act necessitated the amendment of the Arbitration Rules of the Netherlands Arbitration Institute. The below - very succinctly - summarizes the highlights of the amendments incorporated in the New Arbitration Rules of the Netherlands Arbitration Institute (see http://www.nai-nl.org/en/, which includes (as from page 38) the Netherlands Arbitration Institute's comments and recommendations).
In line with the most important amendments to the Dutch Arbitration Act - as summarized above - the New NAI Arbitration Rules now (i) facilitate a challenge procedure before a NAI Challenge Committee (Article 19 New NAI Rules), (ii) implement practical rules in the context of e-Arbitration (see Articles 1, 3, 4, 7, 8, and 21 New NAI Rules), (iii) facilitate a procedure for the consolidation of NAI arbitrations before a special 'consolidator', (iv) incorporate a provision on remission (Article 49 New NAI Rules), and (v) exclude the deposit of arbitral awards with the registry of the registry of the relevant court, unless the parties have agree otherwise (Article 45 New NAI Rules).
In addition, the possibility of summary arbitral proceedings (i.e. emergency arbitration), which was already included in the previous version of the Rules, is maintained (Articles 35 and 36 New NAI Rules). As a final note, a fundamental change is reflected in Articles 13 and 14 New NAI Rules, which provide that with regard to the appointment of arbitrators the so-called list-procedure is, in principle, replaced by party appointment.
5. Conclusion
In conclusion, both the New Dutch Arbitration Act and the New Arbitration Rules of the Netherlands Arbitration Institute contain considerable improvements. This reflects the Dutch legislator's aim to promote the Netherlands as a venue for international arbitrations, especially in view of the important arbitration institutions that are located in the Netherlands, such as the Permanent Court of Arbitration in The Hague. These improvements will, in any case, certainly contribute to Dutch arbitration practice and make the Netherlands an even more arbitration-friendly venue.