I INTRODUCTION

i The Dutch arbitration landscape

The Arbitration Act adopted in 2014 (2014 Arbitration Act) forms the current framework for arbitral proceedings in the Netherlands. The 2014 Arbitration Act (which entered into force on 1 January 2015) replaced the former Arbitration Act of 1986 (1986 Arbitration Act), which had been in force for almost 30 years.2 Over the years, arbitral proceedings have frequently been initiated in the Netherlands, with an increase in the number of users of arbitration, although precise statistics are not available. Some commentators suggest that the rising number of arbitral institutions that address the needs of specific industries has contributed to the amount of arbitrations taking place in the Netherlands. Around 100 arbitral institutions exist in the Netherlands, with the Netherlands Arbitration Institute (NAI) and the Arbitration Institute for the Construction Industry being the most important arbitral institutions in the country. Other important institutions include PRIME Finance, which deals with financial disputes, and TAMARA, pertaining to maritime and transport arbitration. Other arbitral institutions deal with various areas of trade in commodities (e.g., potatoes, flower bulbs, grain and feed, metal, dried semi-tropical fruits and spices). In addition, the Netherlands is home to the prominent Permanent Court of Arbitration (PCA), which is located in The Hague, and its mandate includes the administration of interstate and investor–state arbitration.

The Netherlands has also signed and ratified the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention).3 The Netherlands made no reservations when ratifying the Convention on 14 October 1963, except for the reciprocity reservation. The Netherlands is also party to the Convention on the Settlement of Investment Disputes between States and Nationals of Other States, which was ratified in 1966,4 as well as to almost 100 bilateral investment treaties (BITs)5 and the Energy Charter Treaty (ECT), which is one of the most important multilateral investment treaties.6 EU law has also been a source of influence for the 2014 Arbitration Act.

ii The 2014 Arbitration Act

The 2014 Arbitration Act is to a large extent included in Book IV of the Dutch Code of Civil Procedure (DCCP)7 and has been modelled after the UNCITRAL Model Law to make the Netherlands attractive as a place for international arbitration.8

Book IV DCCP is divided into two titles. Rather than making a distinction between domestic and international arbitration, Title 1 pertains to arbitration seated in the Netherlands,9 whereas Title 2 relates to arbitral proceedings seated outside the Netherlands.10 The adoption of this approach has the advantage of allowing the courts and parties to avoid disputes that relate to questions of whether cases are domestic or international.11 Moreover, according to some commentators, a sound legal framework for international arbitration can be suitable for domestic arbitration as well.12

The philosophy of the 2014 Arbitration Act is guided by the principle of granting parties procedural freedom and flexibility. For instance, the 2014 Arbitration Act grants an arbitral tribunal power to hold hearings at any place other than the seat of an arbitration, within or outside the Netherlands, and to designate one of its members to hold a hearing, both unless agreed otherwise by the parties.13 It also allows for information and documents to be exchanged electronically, provided the arbitral tribunal has approved the use of such electronic means and unless one or more of the parties to the arbitration have opted out of the use of such means (and provided that the parties have agreed to such opt-out possibility).14

The 2014 Arbitration Act provides for the assistance of the Dutch judiciary, if necessary, by delegating powers to the president of the district court by, for example, allowing him or her to choose the number of arbitrators in cases where the parties cannot reach an agreement on that issue,15 or giving him or her the power to appoint the delegated judge before whom examination of witnesses can take place.16

Moreover, the court of appeal has the power to annul awards.17 There are two limits for seeking the annulment of an arbitral award. The first is the filing of a claim for annulment within three months after the award has been dispatched to the parties or deposited with the competent district court (if the parties have agreed to such deposition cf. Article 1058(1(b) DCCP). The second is the filing of a claim for annulment within three months after the award, accompanied by a leave for enforcement, has been served.18

As far as the challenge of arbitrators is concerned, the 2014 Arbitration Act provides that parties to an arbitration may agree that an independent third party, such as an arbitral institution, can also decide on a challenge of an arbitrator, instead of the previously mandatory provision that granted such power exclusively to the president of the district court.19 Similarly, the parties may jointly decide that a third party, and not only the president of the district court, can decide on a party's request to consolidate arbitral proceedings that are either both seated in the Netherlands, or where one is seated in the Netherlands and the other is seated outside the Netherlands.20

Additionally, parties are able to request assistance from the Dutch courts in matters pertaining to arbitral proceedings seated outside the Netherlands, such as interim measures or preliminary witness examinations.21 It is interesting to note that if a party claims before a court that there is a valid arbitration agreement between the parties before submitting a defence, assistance by the Dutch courts can only be granted if the requested measure cannot be obtained, or cannot be obtained in a timely manner, from the arbitral tribunal. The courts do not have to determine whether the invoked arbitration agreement is valid.22

Finally, the 2014 Arbitration Act also provides that if a state, any other legal entity covered by public law or a state-owned company is a party to an arbitration agreement, it may not rely upon its national legislation or regulations for the purpose of contesting its capacity or power to enter into the arbitration agreement, or the susceptibility to submit the dispute to arbitration against counterparties that were not familiar with such limitations.23

II THE YEAR IN REVIEW

i Developments affecting international arbitration in the Netherlands

On 1 January 2019, the Netherlands introduced a new commercial court within its procedural system: the Netherlands Commercial Court and the Netherlands Commercial Court of Appeal (together: NCC).24

The NCC are placed as chambers within the Amsterdam District Court and the Amsterdam Court of Appeal, respectively. The NCC will specialise in complex (international) commercial cases, and are meant to offer an alternative to international arbitration, and to more costly forums to litigate international disputes such as London, Dubai, Delaware or Singapore. The court fees of the NCC are higher than those of regular Dutch courts, but are nevertheless expected to be lower than the administration costs and arbitrator fees in international arbitration proceedings.25

The most distinctive feature of the NCC is that all proceedings will be conducted in English. Judgments of the NCC will also be rendered in English. Judges of the NCC are selected on the basis of their specialised expertise as well as their command of the English language.

The NCC have jurisdiction in civil and commercial matters where:

  1. the dispute is within the parties' autonomy and is not subject to the jurisdiction of the cantonal court or the exclusive jurisdiction of any other court;
  2. the dispute has an international aspect;
  3. the Amsterdam District Court is the competent court (pursuant to a forum choice or otherwise); and
  4. the parties have expressly agreed for proceedings to be before the NCC in English.

Once the jurisdiction of the NCC is established, separate NCC rules of procedure will apply alongside Dutch statutory rules of civil procedure. These rules of procedure, which have been published on the NCC's website,26 contain provisions tailored to international commercial cases, such as the submission of documents through an NCC portal, case management conferences and the possibility to request a court reporter to be present during hearings to draw up full verbatim transcripts.

Proceedings at the NCC are in principle not confidential. The applicable private international rules on jurisdiction and enforcement also remain unaffected. Furthermore, the NCC system does not provide for English-language cassation proceedings. Cassation against rulings of the Netherlands Commercial Court of Appeal is only possibly in (regular) Dutch language proceedings with the Dutch Supreme Court (Supreme Court). The NCC has hosted its first hearings, and on 8 March 2019 rendered its first judgment.27

Another notable development is the growing prominence of privately-funded arbitration mechanisms for standardised disputes. A particular example of this is the e-Court, an online dispute resolution portal offering arbitration and binding advice proceedings for small disputes. The e-Court is meant to offer a fast and low-cost dispute resolution mechanism resulting in an award drawn up in concise and understandable language. Although it has been argued that it lowers the barrier of entry into arbitration for private individuals, it has also been criticised, including by the Dutch parliament, for a lack of transparency and default awards being rendered without due review of the merits of claims.28 The e-Court addressed this criticism in a press release. On 27 February 2019, these issues prompted the Overijssel District Court to submit preliminary questions to the Supreme Court regarding the enforcement of default awards against consumers.29

ii Arbitration developments in local courts

Supreme Court applies strict interpretation of time frames for filing the annulment of an arbitral award

In Bursa/Güris,30 the Supreme Court ruled in favour of a strict application of the (alternative) time frames for filing for the annulment of an arbitral award.

Under Article 1064a(3) DCCP, a party seeking the annulment of an arbitral award seated in the Netherlands has two opportunities to do so. Its first opportunity is to file a claim for annulment within three months after the award has been dispatched to the parties or deposited with the competent district court (if the parties have agreed to such deposition cf. Article 1058(1(b) DCCP).31 Its second opportunity is to file a claim for annulment within three months of the award, accompanied by a leave for enforcement, having been served.

The facts relate to the Bursa light rail system project, a construction venture commissioned by the municipality of Bursa in Turkey. This project has led to a number of disputes, resulting in several annulment proceedings before the Dutch courts.32 In the present case, Bursa filed a claim for annulment before The Hague District Court more than three months after the award had been deposited with the Dutch court and before the award and leave for enforcement had been served on Bursa.

Bursa argued that its claim for annulment was nevertheless admissible since it was 'sufficiently clear' that the award will be enforced (and that the second time frame would commence in the future) because Güris et al. had already requested leave for enforcement before the Dutch and Turkish courts. The Supreme Court rejected this argument, stating that the wording of Article 1043a(3) DCCP allowed no such exception. Additionally, Bursa's argument would lead to practical difficulties, because the timeliness of a claim for annulment would depend on the subjective criteria that it is sufficiently clear that enforcement will take place.

Subsequently, the Supreme Court addressed whether a claim for annulment may still be admissible if the second time frame commences during annulment proceedings. Bursa had argued that the Bursa District Court had in fact served its judgment containing leave for enforcement while the annulment proceedings before The Hague District Court were still pending. For this reason, it held that its claim for annulment was brought timely. According to the Supreme Court, however, this fact has no bearing on the timeliness of the claim for annulment if such claim was brought prior to the commencement of the second time frame.

The Supreme Court therefore ruled in favour of a strict application of the two time frames for filing annulment proceedings. A party missing the first time frame will have to wait until the commencement of the second time frame before filing for annulment of an arbitral award, even if it is clear that the counterparty will enforce the award in the future.

Oil reserves meant for distribution to sovereign state are not immune from execution

In an arbitral award rendered under the rules of the ICC, Petróleos de Venezuela, SA (PDVSA) – an oil company owned by Venezuela – and two of its subsidiaries were ordered to pay approximately US$2 billion to ConocoPhilips in relation to the nationalisation of ConocoPhilips' assets.33 ConocoPhilips levied a prejudgment attachment on, inter alia, PDVSA's oil reserves held in a refinery located in Curaçao. PDVSA requested the lifting of the attachment in summary proceedings before the Court of First Instance of Curaçao. The proceedings were joined by Curaçao, since the attachment had effectively halted the delivery of oil to Curaçao's suppliers of electricity, water and fuel.

The Court of First Instance of Curaçao ruled in its judgment of 18 May 2018 that ConocoPhilips was not obliged to substantiate in its attachment request why the oil reserves were not immune from execution.34 It further found that the oil reserves were in any event meant for commercial purposes, and therefore were not immune from execution. This is not changed by the fact that these purposes include delivery to government institutions of Curaçao as long as the oil reserves are not owned by Curaçao. The Court of First Instance of Curaçao nevertheless lifted the attachment after having weighed the parties' respective interests. It concluded that the society of Curaçao risked suffering significant damages as a result of the halted delivery of oil to its national utility suppliers. The attachment was therefore lifted insofar as it affected oil meant for Curaçao's fuel and electricity supply. Any payments made in consideration for such oil were to be paid into an escrow account.

iii Investor–state disputes

Court of Appeal clarifies scope of annulment proceedings against Yukos award

On 25 September 2018, The Hague Court of Appeal issued an interim judgment in the appeal proceedings brought by former Yukos shareholders against Russia.35 The former Yukos shareholders appealed the ruling of The Hague District Court in which it had annulled PCA-administered arbitral awards pursuant to which Russia had been ordered to pay approximately US$50 million to the former Yukos shareholders.36

In the appeal proceedings, the Yukos shareholders requested the Court of Appeal to disregard certain arguments made by Russia in its statement of defence in the appeal proceedings, including that the shareholders had acted improperly when making their investments in Yukos – the unclean hands defence – and that the shareholders had committed fraud in the arbitration.

Under Dutch arbitration law (Article 1064a(4) DCCP), all grounds for annulment must be presented in the initial writ of summons at the risk of forfeiting the right to do so thereafter. A party seeking annulment can still raise further legal or factual substantiation of grounds for annulment after the initial summons, provided it does so within the limits of due process.37 A ground for annulment initially raised in relation to one arbitral award cannot thereafter be raised in relation to another arbitral award in the same annulment proceedings.38

The Court of Appeal considered that Russia raised the unclean hands defence as a further substantiation of the absence of a valid arbitration agreement as a ground for annulment, which Russia had already raised in its initial summons. This ground for annulment was therefore raised timely. The Court of Appeal further considered that raising such substantiation did not contravene the limits of due process. The Court of Appeal rejected the shareholders' argument that the absence of a valid arbitration agreement was not asserted with respect to the specific decision against which the unclean hands defence was raised. It is not necessary for the initial summons to specify against which specific decisions of an arbitral award the asserted ground for annulment relates.

However, the Court of Appeal accepted the shareholders' objection against Russia's allegations of fraud by the former Yukos shareholders. It considered that this allegation effectively amounted to a ground to revoke, rather than annul, the arbitral awards. Since revocation of awards is subject to distinct proceedings under Dutch arbitration law (Article 1068 DCCP), Russia's allegations of fraud could not be raised in the annulment proceedings.

Dutch courts rule on distinction of Kazakhstan from its central bank and sovereign wealth fund

Kazakhstan has recently been the subject of a number of Dutch enforcement proceedings. The enforcement proceedings discussed here were brought in connection with two arbitral awards. The first is an arbitral award rendered under the rules of the Arbitration Institute of the Stockholm Chamber of Commerce, under which Kazakhstan was ordered pay approximately US$500 million to Anatolie and Gabriel Stati and their companies, Moldovan investors in oil projects expropriated by Kazakhstan.39 The second is an ICSID award pursuant to which Kazakhstan was ordered to pay US$39.2 million in damages to Caratube, another oil investor.40

On 23 January 2018, the Amsterdam District Court lifted the attachment levied by the Statis on a €22 billion cash and securities account held by the National Bank of Kazakhstan (NBK) with a custodian bank.41 It reasoned that NBK, not Kazakhstan, was the contractual creditor of the funds in the account. Since the arbitral award was not directed at NBK, the Statis could not levy an attachment on NBK's assets.

On 22 March 2018, the Amsterdam District Court lifted the attachment levied by Caratube on the aforementioned account held by NBK with a custodian bank.42 It did so for the same reasons as stated in its decision of 23 January 2018 in the Statis case. Additionally, it considered that since NBK acted as Kazakhstan's central bank, its assets are categorically immune from execution on the basis of Article 21(1)(c) of UN Convention on Jurisdiction Immunities of States and their Properties.43 Insofar as Kazakhstan has granted a waiver of immunity, this was not understood to extend to assets belonging to NBK.

On 7 May 2019, the Amsterdam Court of Appeal confirmed a decision of the Amsterdam District Court in which it denied an application to lift the attachment levied by the Statis on assets of Samruk, a Kazakhstan sovereign wealth fund, on the basis that it was entirely controlled by Kazakhstan and lacked factual or economic independence.44 As such, it accepted that Samruk had been incorporated with the sole purpose of shielding assets from the recovery of Kazakhstan's creditors and that Samruk was abusing this position by arguing that it was legally distinct from Kazakhstan.

Arbitral award that has lost legal force under the law of its seat equated with an annulled award

In Diag/Czech Republic, the Supreme Court addressed the recognition and enforceability of a 'final award' rendered in arbitration proceedings seated in the Czech Republic.45 The arbitral proceedings had been subjected to a party-agreed arbitral review process, which resulted in a resolution declaring that the arbitration proceedings had been discontinued prior to the final award.

The Dutch enforcement proceedings related to the recognition and enforcement of the final award. According to the Supreme Court, the Amsterdam Court of Appeal was correct in ruling that the effect of the arbitral review process on the legal force of the final award must be determined in accordance with the arbitration law of the seat. Based on the finding of the Amsterdam Court of Appeal that the final award had indeed lost its legal force as a result of the arbitral review process, the Supreme Court ruled that such must be equated with the award having been annulled. As a result, the final award could not be recognised or enforced in the Netherlands.

iv Other developments

On 6 March 2018, the Court of Justice of the European Union (CJEU) ruled in Slovakia v. Achmea that the arbitration clause contained in Article 8 of the 1991 Netherlands–Slovakia BIT has an adverse effect on the autonomy of EU law, and is therefore incompatible with EU law.46 This decision is the first precedent with respect to the incompatibility of arbitration clauses contained in intra-EU BITs with EU law. The CJEU first found that the arbitral tribunal constituted under the BIT must rule on the basis of the law of the relevant contracting state involved in the dispute as well as other (international) agreements between the contracting parties, including EU law. This may entail that the arbitral tribunal may be called to interpret or apply EU law. Furthermore, the CJEU did not consider the arbitral tribunal concerned to be part of the judicial system of either the Netherlands or Slovakia, and ruled that it can therefore not refer to the CJEU for a preliminary ruling. Finally, the CJEU observed that the arbitral award is not subject to (limited) review by a court of a Member State. According to the CJEU, this means that the BIT effectively removes matters concerning the application or interpretation of EU law from the review of national courts and hence from the system of judicial remedies that the TFEU requires Member States to establish on questions of EU law. Although the effect of this judgment on intra-EU investment disputes under the ICSID Convention and the ECT is still uncertain, Member States have already taken steps to terminate intra-EU BITs.47

On 7 March 2018, the municipality of The Hague opened The Hague Hearing Centre, a dedicated venue located in The Hague tailored to, inter alia, hosting hearings in international arbitrations.

III OUTLOOK AND CONCLUSIONS

The Netherlands always strives to stay ahead of developments in (international) arbitration, and the adoption of the 2014 Arbitration Act and the 2015 NAI Rules, as well as the introduction of the Netherlands Commercial Court and the opening of The Hague Hearing Centre demonstrate that fact. Moreover, the effective management and adjudication by the Dutch courts of cases relating to arbitration shows the generally pro-arbitration stance of the country. These factors, along with the many bilateral and multilateral investment treaties that the Netherlands has entered into, as well as the presence of prominent arbitral institutions, promise a bright future for arbitration in the Netherlands.


Footnotes

1 Marc Noldus is an associate at Linklaters LLP and Marc Krestin is a senior associate at Allen & Overy LLP.

2 The 2014 Arbitration Act applies to arbitrations initiated on or after 1 January 2015. The former Arbitration Act of 1986 remains applicable to arbitrations initiated before this date.

3 Rijkswet 14 October 1963 (Stb 417). The instrument of ratification was deposited with the Secretary-General of the United Nations on 24 April 1964, in accordance with Article VIII(2) of the Convention, and the Convention entered into force on 23 July 1964, pursuant to Article XII(2) of the same Convention.

4 Rijkswet 21 July 1966 (Stb 339). The instrument of ratification was deposited with the World Bank on 14 September 1966, in accordance with Articles 68(2) and 73 of the Convention, and the Convention entered into force on 14 October 1966, pursuant to Article 68(2) of the same Convention.

5 For a list of the BITs signed by the Netherlands, see investmentpolicyhub.unctad.org/IIA.

6 Rijkswet 15 May 1996 (Stb 282). The instrument of ratification was deposited with the government of the Portuguese Republic on 16 December 1997, in accordance with Articles 39 and 49 of the Treaty, and the Treaty entered into force on 16 April 1998, pursuant to Article 44(1) of the same Treaty.

7 Articles 1020–1076 DCCP.

8 Toelichting (footnote 11) 27.

9 Articles 1020–1073 DCCP.

10 Articles 1074–1076 DCCP.

11 'Memorie van Toelichting', (1984) Tijdschrift voor Arbitrage (TvA) 19; HJ Snijders, Nederlands Arbitragerecht (Kluwer, Deventer 2011) 49; W Hugenholtz, Hoofdlijnen van Nederlands burgerlijk procesrecht (Convoy, Dordrecht 2015 24th edition) 212; AJ van den Berg, R van Delden and HJ Snijders, Netherlands Arbitration Law (Kluwer Law and Taxation, Deventer/Boston 1993) 120.

12 G Meijer and M Paulsson, 'National Report for the Netherlands', in J Paulsson (ed) International Handbook on Commercial Arbitration (Kluwer Law International 2012) 1; A J van den Berg, R van Delden and H J Snijders (n 6) 120; A J van den Berg, 'Hoe gastvrij is Nederland voor internationale arbitrage', Lecture given at the Erasmus University Rotterdam – 11 April 1990 (Kluwer, Deventer, 1990) 4.

13 Article 1037(3) DCCP.

14 Article 1072b DCCP.

15 Article 1026(2) DCCP.

16 Article 1041a (1) DCCP.

17 Article 1064a (1) DCCP.

18 Article 1064a(2) DCCP.

19 Article 1035(7) DCCP.

20 Article 1046 DCCP.

21 Articles 1074a–1074b DCCP.

22 Article 1022c DCCP (arbitrations seated in the Netherlands); Article 1074d DCCP (arbitrations seated outside the Netherlands).

23 Article 167 Dutch Civil Code (DCC).

24 Government Gazette 2018/474. See also C H van Rhee, 'The Netherlands Commercial Court in an International Context', TvCR 2016/4, pp. 120, 121; D J Oranje 'The coming into being of the Netherlands Commercial Court', TvCR 2016/4, pp. 122–6; P E Ernste and F E Vermeulen 'The Netherlands Commercial Court – an attractive venue for international commercial disputes?', TvCR 2016/4, pp. 127–37.

25 H J Snijders 'NCC en arbitrage', TvA 2018/1, pp. 5–6.

26 www.rechtspraak.nl/English/NCC.

27 Amsterdam District Court 8 March 2019, ECLI:NL:RBAMS:2019:1637.

28 M de Boer and M de Monchy, 'Kroniek van het burgerlijk procesrecht', NJB 2018/1869; Parliamentary Papers II 2249 023, letter of 16 April 2018.

29 Overijssel District Court 27 February 2019, ECLI:NL:RBAMS:2019:1338.

30 Supreme Court 15 June 2018, ECLI:NL:HR:2018:914 (Bursa/Güris et al).

31 At the time of the Bursa/Güris annulment proceedings, Article 1064(3) DCCP (old) stipulated that the first time limit commenced upon deposition of the award with the district court of the place of arbitration only, not upon dispatch of the award to the parties.

32 See, e.g., Supreme Court 22 March 2013, ECLI:NL:HR:2013:BY8099 (Bursa/Güris et al); Supreme Court 5 December 2008, ECLI:NL:HR:2008:BF3799 (Bursa/Güris et al).

33 Phillips Petroleum Company Venezuela Limited, Conocophillips Petrozuata BV v. Petroleos De Venezuela, SA, Corpoguanipa, SA, PDVSA Petroleo, SA, ICC case No. 20549/ASM/JPA (C-20550/ASM).

34 Court of First Instance of Curaçao 18 May 2018, ECLI:NL:OGEAC:2018:92, NJF 2018/331 (PDVSA/ConocoPhilips).

35 The Hague Court of Appeal 25 September 2018, ECLI:NL:GHDHA:2018:2476, TvA 2018/6 (Cyprus Veteran Petroleum et al/Russia).

36 District Court The Hague 20 April 2016, ECLI:NL:RBDHA:2016:4229 (Yukos), TvA 2017/19. The arbitral awards related to the expropriation (cf. Article 26 of the ECT) by the Russian federal government of investments made by former shareholders in Yukos: Hulley Enterprises Limited v. The Russian Federation, UNCITRAL, PCA case No. AA 226, interim award on jurisdiction and admissibility; Yukos Universal Limited v. The Russian Federation, UNCITRAL, PCA case No. AA 227, interim award on jurisdiction and admissibility; Veteran Petroleum Limited v. The Russian Federation, UNCITRAL, PCA case No. AA 228, interim award on jurisdiction and admissibility.

37 Supreme Court 27 March 2009, NJ 2010/169 (HPB/Burshan); Supreme Court 27 March 2009, NJ 2010/170 (Smit/Ruwa).

38 Supreme Court 22 March 2013, NJ 2013/189 (Bursa/Güris).

39 Anatolie Stati, Gabriel Stati, Ascom Group SA and Terra Raf Trans Traiding Ltd v. Kazakhstan, SCC case No. V 116/2010.

40 Caratube International Oil Company LLP v. The Republic of Kazakhstan, ICSID case No. ARB/08/12.

41 Amsterdam District Court 23 January 2018, ECLI:NL:RBAMS:2018:1791.

42 Amsterdam District Court 22 March 2018, ECLI:NL:RBAMS:2018:2548.

43 Amsterdam Court of Appeal 14 November 2017. ECLI:NL:GHAMS:2017:4683 (Bank Indonesia). The UN Convention has not entered into force, but should be applied on this point regardless since it concerns a reflection of customary international law; see also Supreme Court 1 December 2017, ECLI:NL:HR:2017:3054, NJB 2017/2343 (Central Bank of Iraq) with respect to immunity from jurisdiction.

44 Amsterdam Court of Appeal 7 May 2019, ECLI:NL:GHAMS:2019:1556 (Samruk/Kazakhstan).

45 Supreme Court 15 June 2018, ECLI:NL:HR:2018:918 (DIAG/Czech Republic).

46 Court of Justice of the European Union 6 March 2018, Case C-284/16 (Slovak Republic v. Achmea BV). For a discussion of this decision, please see C Fouchard and M Krestin, The Judgment of the CJEU in Slovak Republic v. Achmea – A Loud Clap of Thunder on the Intra-EU BIT Sky!, Kluwer Arbitration Blog, 7 March 2018.

47 Declaration of the Member States on the legal consequences of the Achmea judgment and on investment protection, 15 January 2019.