The Supreme Court recently issued a decision on the personal liability of the president of an arbitral tribunal. The court's previous decision in Greenworld made clear that, in the Netherlands, it is possible under exceptional circumstances to hold arbitrators personally liable on the basis of the Civil Code. In its recent decision, the court clarified the scope of application of the Greenworld standard.
The Amsterdam District Court recently found that it had no jurisdiction over setting-aside proceedings challenging an arbitral award. The place of arbitration in the case at hand had not been determined in the agreement and the arbitrator had not included the place of arbitration in the text of the award. The court therefore had to engage in an interpretative exercise and turned to the New York Convention.
The District Court of The Hague has rejected Ecuador's claim to set aside interim and partial awards in favour of Chevron relating to a pending arbitration on oil pollution in the Ecuadorian Amazon. Ecuador, for the second time, had requested the setting aside of interim awards rendered by an arbitral tribunal established on the basis of the US-Ecuador Bilateral Investment Treaty.
If parties have agreed to arbitration, the court should in principle declare that it lacks jurisdiction. The Enterprise Division of the Amsterdam Court of Appeal has ruled once again that inquiry proceedings are not arbitrable. The Enterprise Court held that inquiry proceedings, as well as the related possibility to impose interim measures, fall within its exclusive jurisdiction.
In two recent cases the Supreme Court held that the Dutch courts always have jurisdiction over applications to enforce arbitral awards in the Netherlands, regardless of whether the counterparty has assets in the Netherlands. The Supreme Court's decision is consistent with Article V of the New York Convention, which does not require that the counterparty own any assets at the place of enforcement.
The Amsterdam District Court recently held that by referring to implied obligations (derived from a joint venture's business plan), an arbitral tribunal supplemented a party's contractual obligations, and by doing so stepped outside the limits of its authority as defined in the arbitration clause. The decision clearly shows that limiting the authority of an arbitral tribunal in an arbitration clause dangerously increases the risk of court interference in a dispute.
The District Court of The Hague has rendered a decision in proceedings regarding the annulment of an arbitral award. The judgment serves as a reminder to counsel to put forward and substantiate sufficiently their arguments and present them in accordance with established case law.
Until fairly recently, Dutch law contained no specific mediation provisions. However, this changed with the implementation of the EU Mediation Directive. Three draft bills that aim to further embed and codify mediation as an alternative to traditional judicial procedures are pending in Parliament; if enacted, they should make the use of mediation quicker and easier.
A recent Supreme Court decision examining whether an arbitral award and the proceedings that led to the award were contrary to public order provides lessons on the use of expert advice in arbitration, the reasoning of the arbitral award and how to ensure adherence to the 'equality of arms' principle. The Court of Appeal of The Hague will now consider whether procedural safeguards were sufficiently observed.
Over the past decade there have been several publications in the Netherlands on the arbitrability of corporate law disputes. Recently, the Enterprise Chamber of the Amsterdam Court of Appeal ruled on another matter of corporate law which it has found is not arbitrable: enquiry proceedings regarding the policy and affairs of a company, as well as the related possibility to impose (interim) measures.
The minister of justice recently submitted a draft bill to Parliament to modernise the Arbitration Act 1986. The aim of the draft bill is to make the Netherlands more attractive as a seat for arbitration. This is to be achieved by, for example, codifying best practice to enable the parties to tailor the arbitration to their needs and making it possible to limit annulment proceedings to a single instance.
In the event that the parties cannot agree on the appointment of arbitrators within the period specified by the applicable institutional rules of arbitration, the Arbitration Act allows them to request the president of a district court to appoint the arbitrators. This provision has been further clarified in a recent case, in which the Dutch courts adopted a pragmatic approach.
The District Court of The Hague recently rejected a claim to annul an arbitral award rendered in favour of Croatia against Austrian casino company Adria Beteiligungs GmbH. After its earlier case in which it upheld an arbitral award rendered in proceedings against Ecuador in favour of US energy company Chevron, the court again showed that Dutch courts are arbitration friendly and reluctant to quash arbitral awards.
Two first instance district courts put aside arbitration agreements for reasons of reasonableness and fairness in cases concerning third-party or impleading proceedings. Even though the Netherlands has a sophisticated arbitration law and Dutch courts generally observe and respect valid arbitration agreements, courts may find that there are compelling reasons to disregard a contractual arbitration agreement.
A number of arbitration institutions have made it possible for parties to request interim measures prior to the constitution of the arbitral tribunal from a so-called 'emergency arbitrator'. Meanwhile, where parties choose for the seat of the arbitration to be in the Netherlands, in urgent cases they can opt for tried and tested summary arbitral proceedings under the Dutch Arbitration Act.
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.