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Arbitral awards can be set aside on the basis of five limited grounds, one of which is failure to provide reasoning in the award. This issue was debated in a recent case before the Utrecht District Court. The court dismissed the claim to set aside the arbitral award, a decision which was upheld by the Amsterdam Court of Appeal and the Supreme Court.
In a recent case the Supreme Court made clear that the requirement to mention all grounds for setting aside an arbitral award in the introductory writ of summons cannot be interpreted in such a rigorous way that it becomes impossible for a party further to substantiate - with new legal and factual arguments - grounds that had been invoked in a timely manner at the outset of the annulment proceedings.
The Amsterdam Court of Appeal recently enforced four Russian arbitral awards under Article 5.1e of the New York Convention even though the Russian courts had set aside those awards. The decision illustrates that in the Netherlands, foreign state court decisions setting aside arbitral awards are not automatically recognized.
Despite the arbitrators' duty to explore each possible avenue to reach a collegial and unanimous decision, arbitral practice over the last few years has shown an increasing trend towards dissenting opinions. A recent Supreme Court decision emphasizes the heightened standard of care that the majority of arbitrators must observe if one of the other arbitrators decides to dissent.
The Supreme Court has handed down a judgment that regulates the extent to which arbitrators who are appointed for their particular professional expertise may conduct their own investigations or examinations of evidence in arbitral proceedings. The dispute arose out of a combined pension insurance and mortgage insurance contract.
The Supreme Court recently made another judgment on the setting aside of arbitral awards. Article 1039(1) of the Code of Civil Procedure is a principle of public order. If Article 1039(1) is not complied with, the arbitral award is liable to be set aside on the grounds of violation of public policy. Alternatively, the court may refuse to grant leave for enforcement of the award.
