The International Arbitration Review: Netherlands
Rules on arbitration have been enshrined in Dutch law for over 200 years. The rules that form the current framework for arbitral proceedings in the Netherlands can be found in the Dutch Code of Civil Procedure (DCCP). Since 1986, they have been located in the Fourth Book of the DCCP on arbitration (following the first three books on domestic (court) litigation) (Arbitration Act). The Arbitration Act was inspired by foreign arbitration acts, and more particularly those of France and Switzerland, and by the UNCITRAL Model Law of 1985. In 2015, the Arbitration Act was extensively amended in an effort to:
- promote alternative ways of dispute resolution;
- improve the efficiency of arbitration proceedings;
- remove impediments;
- clarify unclear provisions;
- reduce the role of the courts relating to arbitration; and
- enlarge the parties' autonomy.
Furthermore, the legislator aimed to improve the Netherlands' position as a venue for international arbitration.2
The Arbitration Act does not distinguish between domestic and international arbitration. The first part (Title 1) of Book 4 of the DCCP (Articles 1020–1073) applies to all arbitration proceedings seated in the Netherlands. In Title 1, rules are set out on subject matters such as:
- the arbitration agreement;
- the lack of jurisdiction of the courts on issues meant to be resolved by arbitration;
- the authority of arbitral tribunals;
- the appointment of arbitrators;
- the challenging of arbitrators;
- provisional measures in arbitration;
- enforcement orders; and
- the setting aside of arbitral awards and their revocation.
The second part (Title 2) of Book 4 of the DCCP (Articles 1074–1076) deals with arbitration proceedings seated abroad. These rules deal with the jurisdiction of the Dutch courts where an agreement applies for arbitration abroad, and with the enforcement of foreign arbitral awards in the Netherlands.
There are no specialist courts in the Netherlands for arbitration-related matters. The Arbitration Act does provide for court assistance to the parties to remove obstacles for arbitration proceedings to commence or to continue. Such assistance will typically be requested by the parties jointly or by one of them. It may, inter alia, consist of fixing the number of arbitrators of which the tribunal shall be composed, where the parties have failed to reach agreement on that issue (Article 1026 DCCP), the appointment of one or more arbitrators where no timely appointment has been brought about (Article 1027 DCCP), and the discharging of an arbitrator or a tribunal (Articles 1029–1031). Furthermore, courts may be requested to organise an interrogation of reluctant witnesses (Article 1041a DCCP) and to consolidate two or more arbitration proceedings seated in the Netherlands (Article 1046 DCCP).
The Netherlands hosts a variety of arbitration institutes, most of which apply their own arbitration rules. The Netherlands Arbitration Institute (NAI) is the largest general arbitration institute in the Netherlands. In 2019, the NAI celebrated its 70th anniversary. The Arbitration Board for the Building Industry (founded in 1907) is a renowned arbitration institute for construction disputes. Other specialised arbitration centres and institutes are the Netherlands Association for the Trade in Dried Fruits, Spices and Allied Products (NZV), the Royal Dutch Grain and Feed Trade Association, the Netherlands Oils, Fats and Oilseeds Trade Association (NOFOTA), UNUM Arbitration & Mediation (formerly known as TAMARA: the Transport and Maritime Arbitration Rotterdam Amsterdam), the Netherlands Association for Forwarding and Logistics (Fenex), the Court of Arbitration for Art (CAfA, a joint initiative of the NAI and non-profit organisation Authentication in Art) and the Panel of Recognised International Market Experts in Finance (PRIME Finance). The Netherlands further hosts the Permanent Court of Arbitration (PCA), an institute providing administrative support in international arbitration proceedings whose Secretary General may designate an appointing authority under Article 6(2) of the UNCITRAL Arbitration Rules. In 2019, TAMI (Technology Arbitration & Mediation Institute) was founded; an arbitration and mediation institute specialising in technology related disputes. Finally, we should mention the launch of The Hague Rules on Business and Human Rights Arbitration (BHR Arbitration Rules) in December 2019. This is an initiative of the Centre for International Legal Cooperation. The BHR Arbitration Rules, which are based on the UNCITRAL Arbitration Rules, provide a set of rules for the arbitration of disputes related to the impact of business activities on human rights.3 According to the Business and Human Rights Arbitration Working Group, international arbitration has potential in these disputes, as they often occur in regions where no competent or fair state court is available.4
Although official numbers are not available, the number of arbitration proceedings initiated over the past decade has been relatively steady. The Arbitration Board for the Building Industry administered over 600 construction disputes in 2019.5 The number of arbitrations at the Arbitration Board has been rising since the construction crisis in 2008 previously almost halved the number of cases. During the period from 2006 to 2017, the NAI has administered some 118 new cases on average on an annual basis. In 30 per cent of these cases, foreign parties were involved.6 The Arbitration Act and the positive attitude towards arbitration taken by state courts7 make the Netherlands an attractive venue for international arbitration proceedings, which should allow (significant) growth of the number of such proceedings to be conducted in the Netherlands in the nearby future.
The year in review
i Developments affecting international arbitration
Although several scholars have made recommendations for further amendments to the Arbitration Act8 to, inter alia, (further) enhance the Netherlands' competitive position as a venue for international arbitration, major changes in legislation are not to be expected on the short term.
A notable development with a potential effect on international arbitration is the introduction of the Netherlands Commercial Court (NCC) and the Netherlands Commercial Court of Appeal (NCCA). The NCC and the NCCA were created for the resolution of complex international commercial disputes. Within the Dutch court system, the NCC and the NCCA are situated as separate chambers within the Amsterdam District Court and the Amsterdam Court of Appeal, respectively. Proceedings are conducted in English before experienced judges with commercial expertise.9 Judgments are rendered in English.
The NCC or the NCCA may assume jurisdiction if the following requirements are met:10
- the Amsterdam District Court or the Amsterdam Court of Appeal has jurisdiction (on the basis of a choice of forum clause or otherwise);
- the parties have expressly agreed in writing that proceedings shall be conducted in English before the NCC or the NCCA;
- the action is a civil or commercial matter within the parties' autonomy (including actions for the setting aside of arbitral awards); and
- the matter concerns an international dispute.
The NCC and the NCCA were created to accommodate the apparent need of conducting litigation in the English language. According to the legislator, the NCC and the NCCA provide an alternative to more expensive forums, including other foreign commercial courts, such as those in London, Singapore, Dublin, Delaware and Dubai, and to arbitration.11 Although court fees of the NCC and the NCCA are considerably higher than court fees charged for cases brought before ordinary Dutch courts,12 they are expected to be lower than the costs of international arbitration and of other international commercial courts.13
The differences between international arbitration and litigation before the NCC and the NCCA, for instance with regard to enforcement,14 confidentiality15 and flexibility,16 imply that the question as to which forum is to be preferred is a matter to be decided on the basis of the specific circumstances of each particular case. It has been suggested that the NCC, the NCCA and arbitration should be construed as colleagues that are supplementary to one another rather than competitors.17 Parties having opted for the resolution of their disputes by arbitration in the English language may be inclined to elect the NCC or the NCCA as the courts having jurisdiction in arbitration-related matters (such as the setting aside or the enforcement of awards). It has also been argued that the NCC and the NCCA might develop into a competitor of arbitration for international dispute resolution. The fact that the NCC and the NCCA are the only international commercial court on the European continent that provide for proceedings fully conducted in English should give them an edge over similar courts in Frankfurt and Paris.18
To date, the NCC has rendered 10 judgments.19 Interestingly, the parties involved in one of the cases20 have explicitly waived their right to have their dispute resolved by arbitration under the Rules of Arbitration of the International Chamber of Commerce.
With respect to alternative dispute resolution in the Netherlands, the following developments are worth noting. Private online alternative dispute resolution initiatives have gained popularity over the past few years. The three best-known private initiatives are e-Court (the first online arbitration and binding advice tribunal in the Netherlands), Stichting Arbitrage Rechtspraak Nederland and DigiTrage. These initiatives all aim to provide for a swift, efficient and affordable alternative to litigation in relatively small cases.21 Their cases mainly deal with consumer-related matters.22
While Stichting Arbitrage Rechtspraak Nederland and DigiTrage are operational, e-Court has (temporarily) stopped handling cases since it was met with negative responses from, inter alia, the judiciary. According to critics, e-Court lacks independence and transparency.23 The Amsterdam District Court found in a judgment of 31 January 2018 that procedural mistakes and flaws had occurred in e-Court-administered proceedings.24 In February 2018, the Dutch courts decided that they would no longer grant leave for enforcement of e-Court judgments until preliminary questions on e-Court were answered by the Supreme Court. This prompted e-Court to (temporarily) stop handling cases. No preliminary questions have been submitted (yet).25
ii Arbitration developments in local courts
In this section, the opinion of the Advocate General delivered in the period under review, 1 April 2020 to 1 April 2021, in the Bariven case26 will be discussed in detail. In addition, four lower courts' judgments relating to Venezuela should be mentioned.
The Hague District Court's judgment of 8 April 202027 is about the difficulty to enforce arbitral awards against the State of Venezuela. In order to enforce an International Centre for Settlement of Investment Disputes (ICSID) award against the State of Venezuela in an amount of US$372,461,982, the creditor of that award, OI European Group BV (OI), effectuated attachments on assets of three different Dutch companies, each of which was alleged to be the State of Venezuela's alter ego. By the referenced judgment, the court merely decided on the issue of jurisdiction. Such jurisdiction was accepted by the court. However, on the issue of the alleged quality of alter ego of the State of Venezuela, which was to be evidenced by OI, no sufficient evidence was held to be available by The Hague District Court's subsequent judgment of 29 September 2020.28
Interestingly, by a judgment of The Hague District Court of 19 August 2020, the court assumed jurisdiction to hear a claim of IGS Technologies & Services, LLC (IGS) against Bariven and Petróleos de Venezuela SA (PDVSA)29 on settlement of the purchase price for equipment delivered by IGS to Bariven, notwithstanding an apparently valid arbitration clause in the relevant contracts. The arbitration agreement evidenced by that clause was held to be ineffective on account of the lack of ministerial approval for entering into an arbitral agreement by state-controlled entities, as required by Venezuelan law. The court accordingly assumed jurisdiction.
By its judgment of 8 September 2020, The Hague Court of Appeal stayed proceedings initiated by ConocoPhillips Gulf of Paria BV (CGP) to obtain leave for enforcement of an arbitral award rendered in its favour against PDVSA and Corporación Venezolana de Petróleo SA.30 The oral hearing was deferred to 19 April 2021 and CGP was ordered to duly summon the defendants to appear in court.
Bariven/Wells: Supreme Court is advised to dismiss appeal in cassation
In the previous edition of the International Arbitration Review, we discussed The Hague Court of Appeal's decision of 22 October 201931 in which the ICC award rendered between Bariven SA (Bariven) and Wells Ultimate Service LLC (Wells) was set aside on the ground of a violation of public policy (Article 1065(1)(e) DCCP), evidenced by the court's finding that the underlying purchase contract was procured through corruption.32 The same argument had been discussed and rejected by the arbitral tribunal. The Court of Appeal's finding to the contrary was reached after a full review of the allegation of corruption. In other words, the restraint that is normally applied by the courts of the Netherlands was left unapplied in respect of the issue of corruption. Appeal proceedings with the Supreme Court are pending at the time of writing. On 12 January 2021, the Advocate General's opinion on the appeal against the Court of Appeal's judgment dated 11 December 2020 was delivered.33 By the said opinion, the Advocate General advised the Supreme Court to dismiss the appeal.
On the issue of the restraint that is to be applied by the courts in setting aside cases, the Advocate General takes the view that, once a violation of public policy is qualified as striking, the court shall investigate such infringement without restraint. It shall, in other words, apply a full and independent review. The procurement of a contract through corruption would in the Advocate General's view qualify as a case of a striking infringement.
A second interesting point in the Advocate General's opinion relates to the arbitral tribunal's obiter dictum. Having decided that there was no sufficient evidence for the allegation of corruption, and having accordingly awarded payment of Wells' invoice by Bariven, the tribunal added (in paragraphs 13.68–13.74 of the award) that in the unlikely event that the contract between Wells and Bariven should have been declared null and void, the result on account of Well's alternative claim (Bariven's unjust enrichment) would not be different from the result in the case of the tribunal's awarding of Wells' primary claim. According to the tribunal, the contract's voiding would imply its non-existence ex tunc. In that case, any performance already effectuated (i.e., in the present case: the delivery of equipment to Bariven) should be returned to Wells on account of undue payment (Article 6:203 DCC). This being impossible, the enriched party (i.e., Bariven) would be obligated to make payment to the impoverished party (i.e., to Wells) of an amount in compensation of the unpaid equipment. According to the arbitral tribunal in its obiter dictum, such amount would be equal to the amount as invoiced by Wells to Bariven. On appeal, Wells complained that the Court of Appeal had failed to take the obiter dictum into account. The Advocate General disagreed on the ground that the obiter dictum was of no consequence for Wells' primary claim (the claim for payment of Wells' invoice) but only for Wells' alternative claim (i.e., its claim based on undue payment). That claim was left undiscussed by the tribunal since the primary claim had been awarded. The Advocate General therefore takes the view that the Court of Appeal was correct in disregarding the obiter dictum.
The Supreme Court judgment in this case is expected in the course of 2021.
iii Investor–state disputes
In this section, two relevant judgments rendered in the period under review will be discussed: Ecuador v. TexPet and Chevron and Yukos. In addition thereto, the Netherlands were, for the first time, involved in an investment arbitration.
On 20 January 2021, German energy company RWE filed a request for arbitration against the Netherlands with ICSID in Washington under the Energy Charter Treaty. The claim is for €1.4 billion by way of compensation for implementing plans to phase-out RWE's coal-fired electricity plant in Eemshaven (the Netherlands) by 2030, which is before the expiry of the plant's intended lifetime. During a hearing on this case in the Dutch House of Representatives, RWE promised to agree to (partially) public proceedings.
Setting-aside claim can be brought against provisional measures in interim awards
In the eleventh edition of the International Arbitration Review we discussed Ecuador's unsuccessful attempt to have the Track I arbitral award in the arbitration proceedings between TexPet and Chevron on the one hand and Ecuador on the other hand set aside.34 In the meantime, setting aside proceedings were initiated against the Track II award of 30 August 2018. By its judgment of 16 September 2020, The Hague District Court rejected Ecuador's claim for the setting aside of the Track II award.35
The TexPet and Chevron v. Ecuador arbitral proceedings are about a settlement agreement between TexPet and Ecuador, providing for TexPet's release of all liability towards Ecuador and a subsequent lawsuit by Ecuadorian citizens against TexPet and its shareholder Chevron, culminating in an US$8.6 billion judgment against TexPet and Chevron for environmental damages. This judgment is known as the Lago Agrio judgment. Stating that the referenced judgment constituted an infringement of the settlement agreement between TexPet and Ecuador and that the Lago Agrio judgment was procured by fraud, Chevron and TexPet sought protection against the enforcement of the Lago Agrio judgment and compensation of their damages and losses suffered as a result of the Lago Agrio proceedings and the judgment rendered at the end of these proceedings. In the arbitration proceedings, Ecuador was, inter alia, held liable for a denial of justice, evidenced by judgments procured by fraud and rendered by Ecuadorian courts.
It was the intention of the arbitral tribunal to decide on all legal issues in the Track I and the Track II awards, leaving the issue of quantum for the Track III award.
By the Track II award, the arbitral tribunal, inter alia, held that (1) the Lago Agrio judgment was procured through fraud, judicial misconduct and corruption, and (2) Ecuador has violated its obligations under the US–Ecuador BIT, thereby committing international wrongs towards Chevron and TexPet, inter alia, by a denial of justice, resulting in Ecuador's liability to make reparations for injuries caused. Ecuador was ordered to take immediate measures to prevent the enforcement of the Lago Agrio judgment (e.g., by removing the status of enforceability from the Lago Agrio judgment and precluding any of the Lago Agrio claimants from enforcing the Lago Agrio judgment), to advise where the Lago Agrio claimants may be seeking enforcement, to abstain from collecting proceeds from the enforcement of the Lago Agrio judgment, to return any proceeds that may have been received, to take corrective measures to wipe out the consequences of the internationally wrongful acts, and to compensate Chevron and TexPet for any injuries caused. Ecuador filed for setting aside of the Partial Final Award on Track II.
The District Court's arguments and analysis are centred around two themes: (1) the denial of justice and (2) the arguments raised by Ecuador that the measures imposed on it by the arbitral tribunal could not be implemented by Ecuador as a result of its municipal laws.
The denial of justice as pronounced by the tribunal was challenged by reproaching the tribunal to have left undiscussed the local remedies that according to Ecuador could have been applied by TexPet and Chevron to challenge the Lago Agrio judgment's enforceability. According to Ecuador, this defence would constitute an essential defence that the tribunal should not have left undiscussed. This argument, which was presented under the heading of non-compliance with the tribunal's mandate (Article 1065(1) under (c) DCCP) and of a violation of public policy (Article 1065(1) under (e) DCCP) was rejected in the first place on the court's finding that the local remedies had indeed been sufficiently discussed and in the second place on the ground of the court's finding that infringements of international law cannot be excused by constraints of local law.
On the issue of the alleged impossibility to comply with the tribunal's orders to – put briefly – prevent enforcement measures within or outside Ecuador of the Lago Agrio judgment, the court basically held that by the Track II award, Ecuador was held to divest the Lago Agrio judgment of its enforceability and to procure that said judgment shall not be capable of enforcement abroad.36 Such actions, it was held by the court, were not beyond Ecuador's powers and authority. Moreover, the court held that the issue of Ecuador's alleged impossibility to comply with the tribunal's orders and measures had been sufficiently discussed by the tribunal itself.
Yukos: towards a final judgment on setting aside
As related in the eleventh edition of the International Arbitration Review, The Hague District Court's judgment of 20 April 201637 whereby six interim and final arbitral awards between the Russian Federation and three former shareholders of Yukos OJSC (Hulley, Veteran, and Yukos International, jointly: HVY) were set aside, was reversed by The Hague Court of Appeal's judgment of 18 February 2020.38 As a result, the three final awards whereby an aggregate amount of US$50 billion was awarded to HVY became capable of enforcement again as from the date of the Court of Appeal's judgment. It was no surprise that the Russian Federation entered an appeal with the Supreme Court against the Court of Appeal's judgment. The appeal was filed on 15 May 2020. The Supreme Court's judgment is expected to be rendered within 2021.
The arbitral tribunal's authority was based on the arbitration clause set out in Article 26 of the Energy Charter Treaty (ECT). Even if the Russian Federation (which has never expressed its consent to be bound by the ECT and is not expected to do so in the future) will never be more than a signatory to the ECT, the treaty and the arbitration clause therein set out was held to apply on account of its provisional application as agreed upon in Article 45 ECT.39 According to that clause (the Limitation Clause), such provisional application is limited to the extent it is not inconsistent with (in this case) Russian law.
On 23 June 2020, pending the appeal with the Supreme Court of the Netherlands, a request was filed by the Russian Federation to the Supreme Court for the suspension of enforcement measures of the three final arbitral awards to be ordered. Prior to dealing with the substance of that request, the Supreme Court had to deal with the issue of its jurisdiction on the issue of suspension. Having decided that it had such jurisdiction by its judgment of 25 September 2020,40 the Supreme Court denied the request for suspension by its judgment of 4 December 2020.
Suspension of enforcement measures
According to Article 1066(1) DCCP, the enforcement of an arbitral award is not suspended by the filing of a claim for its setting aside. However, according to Article 1066(2) DCCP, the court deciding on an application for the setting aside of an arbitral award, may – at the request of either party – decide to suspend the enforcement of such award, if it considers the request justified. For that purpose, two elements are to be considered: (1) whether upon a summary analysis, it is found that the award is likely to be set aside, and (2) an assessment of the interests of each of the parties.41 Before discussing these tests, the issue of the Supreme Court's jurisdiction will be discussed in the first place.
Jurisdiction of the Supreme Court on the issue of the suspension of enforcement
Appeals to the Supreme Court are either based on points of Dutch law42, or on the lower court's lack of reasoning; not on the facts of the matter. HVY argued in vain that under the circumstances, the Supreme Court would not qualify as the court that decides on an application for the setting aside of an arbitral award. It argued that when dealing with the request for suspension, the Supreme Court might either confirm the lower court's judgment or set aside such judgment. In the latter case, the matter would, save for exceptional cases, need to be referred to another court than the court whose judgment had been set aside. The Supreme Court disagreed. It held that whenever it had to deal with an issue of setting aside of arbitral awards, it should be considered to decide on an application for setting aside. The Supreme Court accordingly held that it had jurisdiction to decide on the request to suspend.43
The request to suspend; the tests to be applied
A decision to suspend the enforcement of an arbitral award is a provisional measure. Therefore, restraint is to be applied when considering whether or not the setting aside of such award would be likely to occur (the first test for suspension to be awarded). In doing so, the court is to take into account that, in its decision on the setting aside, restraint is to be applied anyway, save for the issue of the validity of the arbitration agreement. For the purpose of assessing the parties' mutual interests (the second test to be applied), issues like the risk of non-recoverability of sums received by the enforcing party in case the setting aside would be pronounced at the end of the day, the expected duration of the setting aside proceedings and the issue of irreparable harm that might potentially be suffered by a party may be taken into account.
The request for a suspension of enforcement measures was denied by the Supreme Court's judgment of 4 December 2020.44 The most interesting features of the court's judgment are highlighted below.
The alleged non-applicability of the arbitration clause
The Russian Federation's argument of non-applicability of the arbitration clause was based on (1) inconsistency with Russian law, (2) lack of HVY's title to sue and (3) HVY's unclean hands.
With respect to the alleged inconsistency with Russian law, the court held on a provisional basis that this argument would require an analysis of foreign law, which is a subject matter beyond the court's jurisdiction. With respect to the Russian Federation's argument that HVY lacked title to sue for not qualifying as an investor, the court provisionally held that the Court of Appeal's reasoning that this was indeed the case, was unlikely to be overturned. Again, on a provisional basis, the court took the view that the unclean hands argument did not appear to be relevant for the issue of the arbitral tribunal's authority but merely for the amount of HVY's claim.
The allegation of fraud and forgery by HVY
With respect to the allegation that HVY committed fraud within the framework of the arbitration proceedings, inter alia by withholding documents or by relying on forged documents, the court provisionally shared the Court of Appeal's approach, holding that such allegations should have given rise to a claim for revocation under Article 1068 DCCP and not to a claim for setting aside.
Other grounds and arguments presented by the Russian Federation
The setting aside was also claimed on the basis of a lack of reasoning and on the basis of an irregular composition of the arbitral tribunal. Each of these grounds were unsurprisingly rejected. A lack of reasoning will only justify a setting aside in the absence of a reasonable explanation of the dispositive or part of it by (sections of) the body of the award. This in itself would imply the unlikeliness of the Court of Appeal's judgment being reversed. The ground of an irregular composition of the tribunal was based on the allegation that the tribunal's secretary had had a considerable share in the drafting of the awards. The secretary was so to say considered as the fourth arbitrator. The Court of Appeal had rejected this argument on account of the fact that all three arbitrators had signed the award. To this, the Supreme Court added that, to be able to verify the Russian Federation's allegation, an investigation of the facts would be needed, which would be an action outside the Supreme Court's jurisdiction.
Assessment of interests
The Supreme Court held that on the one hand there would appear to be a risk of recovery of sums paid to HVY subsequent to enforcement. On the other hand, it was held to be unlikely that in the short run HVY would be successful in the recovery of its claims as awarded. Furthermore, the court provisionally held that HVY are likely to be entitled to a large part of the amount of €1,866,104,634, as awarded by the European Court of Human Rights by its judgment of 31 July 2014.45
On balance it was held that an assessment of interests would not cause the court to award the request for a suspension of enforcement measures.
The end of the saga around the setting aside of the arbitral awards between the Russian federation and HVY is near. The Supreme Court is to render judgment on the issue of setting aside which is likely to be the last one in the series of judgments from the decision of The Hague District Court of 20 April 2016 onwards. By its judgment of 4 December 2020, the Supreme Court seems to have offered us a preview of the last judgment to be rendered in this part of the Yukos saga.
Outlook and conclusions
With the Dutch Courts' consistently open and liberal viewpoint regarding arbitration and the modernised Arbitration Act, which celebrated its fifth anniversary in 2020, the Netherlands continues to be an attractive venue for (international) arbitration. The Dutch arbitration climate is further fostered by the introduction of the NCC and the NCCA as it allows arbitration-related proceedings (at least before the courts deciding questions of fact)46 to be conducted in English.
In the coming year, we expect further judgments to be rendered in some of the cases discussed in Section II. The opinion of the advocate general in the Bariven case is delivered, an appeal is lodged against the decision of The Hague District Court in the Chevron case, and setting aside proceedings initiated by Russia in the Everest case as discussed in the eleventh edition of The International Arbitration Review are in an advanced stage. Other Crimean investment arbitration proceedings now pending before the PCA in The Hague may also give rise to additional setting aside proceedings in the near future. Additionally, the Supreme Court is expected to render its last judgment in the Yukos case in 2021. Also, the ICSID arbitration initiated against the Dutch State by RWE is expected to commence in 2021.
Finally, the NAI has announced it will release a new set of arbitration rules in 2021. Any relevant alterations in these rules will be discussed in next year's edition of The International Arbitration Review.
1 Yvette Borrius is a partner and Jaap Tromp is an associate at Florent BV, and Jan Willem Bitter is the owner of Bitter Advocacy. The authors would like to thank Heleen Biesheuvel for her assistance in preparing this article.
2 Parliamentary Papers II, 2012-2013, 33 611, nr. 3, Explanatory Memorandum to the legislative proposal of the revised arbitration act.
3 Introductory note to the BHR Arbitration Rules.
6 Report of the Academic Research and Documentation Centre, Ministry of Public Safety and Justice, Table 3.14 (updated on 19 December 2019) and Annual Reports NAI 2014 and 2017. See also JW Bitter, 'Arbitrage in Nederland in handelsgeschillen; de Nederlandse arbitragewet en het NAI', CJM Klaasen, GJ Meijer and CL Schleijpen (eds.), Going Dutch – ADR in Nederland, in het bijzonder bij het NAI, Deventer: Wolters Kluwer 2019, pp. 19–54 on p. 50.
7 This attitude is shown by the often-repeated statement in judgments by the Supreme Court and by the lower courts that in the Netherlands there is a general interest in an effective functioning dispute resolution by arbitration. See, for example, Supreme Court 18 February 1994, ECLI:NL:HR:1994:ZC1266 (Nordström/Nigoco), Supreme Court 17 January 2003, ECLI:NL:HR:2003:AE9395 (IMS/MODSAF) and Supreme Court 9 January 2004, ECLI:NL:HR:2004:AK8380 (Nannini/SFT). ECLI stands for European case law identifier references and is a European standardised coding system for court decisions. Dutch court decisions are published on www.rechtspraak.nl.
8 See for instance GJ Meijer and HJ Snijders, Arbitragerecht op de scheidslijn van oud naar nieuw?, The Hague: BJU 2015 and N Peters, 'Drie jaar nieuwe arbitragewet: tien suggesties voor verbetering', TCR 2018, 4 (pp. 101–110).
11 Parliamentary Papers II, 2016–2017, 34 761, nr. 3 (MvT, explanatory memorandum to the legislative proposal to amend the DCCP and the Court Fees Act in relation to the introduction of the NCC and the NCCA).
12 The NCC charges a flat fee of €15,634 per party for ordinary proceedings. The NCCA charges a fee of €20,846 per party. In commercial cases before ordinary district courts, the fees depend on the value of the claim, with a maximum of €4,200 (and in appeal €5,610).
13 Parliamentary Papers II, 2016–2017, 34 761, nr. 3 (MvT), p. 2.
14 Enforcement of NCC and NCCA decisions follows the route of other state court decisions (Brussels I bis Regulation, Hague Choice of Court Convention, bilateral conventions or, in the absence of a governing treaty or regulation, a 'disguised' enforcement order via Article 431 DCCP). One scholar has argued that NCC and NCCA judgments might not be enforceable on the basis of the Brussel I bis Regulation (B van Zelst, 'De Netherlands Commercial Court (of Appeal) – mooie kansen voor arbitrage', ORP 2019/110). With the New York Convention in place in over 150 countries, enforcement possibilities of arbitral awards remain, in principle, broader than enforcement of court judgments outside of the European Union.
15 Litigation before the NCC and the NCCA is, in principle, not confidential, unlike most arbitration proceedings.
16 In addition to Dutch procedural law, NCC proceedings are governed by the NCC Rules of Procedure. Compared to ordinary court proceedings, parties can exert more influence on the case-specific rules of procedure under the NCC Rules, but their possibilities are not as large as in arbitration proceedings. In addition, the NCC does not provide for party-appointed judges.
17 RPJL Tjittes, 'NAI en NCC(A): concurrenten of collega's bij de beslechting van commerciële geschillen?', in: CJM Klaasen, GJ Meijer and CL Schleijpen (eds.), Going Dutch – ADR in Nederland, in het bijzonder bij het NAI, Deventer: Wolters Kluwer 2019, pp. 269–87, on p. 287. See also HJ Snijders, '5 jaar Arbitragewet 2015 én andere ontwikkelingen in het afgelopen lustrum', TvA 2020, 1, and (more critical) B van Zelst and JME van der Linden, 'The Netherlands Commercial Court (of Appeal): Opportunities for Arbitration?', TvA 2020, 2.
18 M Witkamp, 'International Domestic Courts in Europe: A Comparative Analysis on Procedure, Function, Organization', in: International Commercial Courts: The Future of Transnational Adjudication, Cambridge University Press (forthcoming).
19 Last checked on 1 April 2021: Amsterdam District Court 8 March 2019, ECLI:NL:RBAMS:2019:1637, Amsterdam District Court 4 July 2019, ECLI:NL:RBAMS:2019:5197, Amsterdam District Court 4 March 2020, ECLI:NL:RBAMS:2020:1388, Amsterdam District Court 14 April 2020, ECLI:NL:RBAMS:2020:2277, Amsterdam District Court 29 April 2020, ECLI:NL:RBAMS:2020:2406, Amsterdam District Court 13 May 2020, ECLI:NL:RBAMS:2020:2681, Amsterdam District Court 20 May 2020, ECLI:NL:RBAMS:2020:2647, Amsterdam District Court 2 December 2020, ECLI:NL:RBAMS:2020:6008, Amsterdam District Court 9 December 2020, ECLI:NL:RBAMS:2020:6119, Amsterdam District Court 11 March 2021, ECLI:NL:RBAMS:2021:990. The judgments rendered in April 2020 concerned an agreement that contained an arbitration clause, but also specifically provided for interim relief proceedings before the NCC.
20 Amsterdam District Court 4 March 2020, ECLI:NL:RBAMS:2020:1388.
21 The maximum value of cases dealt with by e-Court and Stichting Arbitrage Rechtspraak Nederland is €100,000. DigiTrage handles debt collection cases with a maximum value of €40,000.
22 e-Court was used by, inter alia, health insurance companies for the collection of overdue premiums. Other users were e-commerce businesses, telecom providers and energy providers. A housing association held a pilot for the collection of overdue rent via Stichting Arbitrage Rechtspraak Nederland. Other users include dentists and wholesalers. Because of the nature of the cases and the defendants, Stichting Arbitrage Rechtspraak Nederland offers a broad variety of possibilities for defendants to submit their defence, including but not limited to email.
23 National Organisation for Citizens' Advisers, 'Rechtspraak op bestelling?! Stop commerciële rechtspraak', Sociaal Werk Nederland 2018.
24 Amsterdam District Court 31 January 2018, ECLI:NL:RBAMS:2018:419.
25 In the tenth edition of The International Arbitration Review, it is stated that preliminary questions were raised in a judgment of 27 February 2019. Although one of the preliminary questions dealt with in that judgment was prompted by e-Court's cost-saving inspired practice to consolidate several debt collection cases before requesting one exequatur solely for the consolidated cases and decisions, rather than for each single decision of which it is composed, no preliminary questions with regard to e-Court are known to have been raised at the time this edition was published.
26 Reference is made to the eleventh edition of The International Arbitration Review in which the decision of The Hague Court of Appeal in the Bariven case is discussed on pp. 311–2.
27 The Hague District Court 8 April 2020, ECLI:NL:RBDHA:2020:3193.
28 The Hague District Court 29 September 2020, ECLI:NL:RBDHA:2020:9912.
29 The Hague District Court 19 August 2020, ECLI:NL:RBDHA:2020:8030.
30 The Hague District Court 8 September 2020, ECLI:NL:GHDHA:2020:1658.
31 The Hague Court of Appeal 22 October 2019, ECLI:NL:GHDHA:2019:2677.
32 The International Arbitration Review, eleventh edition, pp. 311–2.
33 Opinion of the Advocate General at the Supreme Court 11 December 2020, ECLI:NL:PHR:2020:1176.
34 See eleventh edition of The International Arbitration Review, pp. 313–4.
35 The Hague District Court 16 September 2020, ECLI:NL:RBDHA:2020:8929.
36 The Hague District Court 16 September 2020, ECLI:NL:RBDHA:2020:8929, para. 5.45.
37 The Hague District Court 20 April 2016, ECLI:NL:RBDHA:2016:4229.
38 The Hague Court of Appeal 18 February 2020, ECLI:NL:GHDHA:2020:234. See the eleventh edition of the International Arbitration Review, pp. 314–5.
39 See the eleventh edition of the International Arbitration Review, pp. 314–5 and the seventh edition, pp. 443–5.
40 Supreme Court 25 September 2020, ECLI:NL:HR:2020:1511.
41 Supreme Court 21 March 1997, ECLI:NL:HR:1997:ZC2314, NJ 1998, 206 with case note HJ Snijders (Benetton I) and Supreme Court 25 February 2000, ECLI:NL:HR:2000:AA4947 (Benetton II).
42 Including provisions of treaties that are directly applicable in the Dutch legal order.
43 Supreme Court 15 September 2020, ECLI:NL:HR:2020:1511.
44 Supreme Court 4 December 2020, ECLI:NL:HR:2020:1952.
45 Judgment of 31 July 2014, nr. 14902/04.
46 In the event a decision of the NCC or the NCCA is challenged in proceedings before the Supreme Court, the proceedings are conducted in Dutch.