In recent setting aside proceedings, The Hague Court of Appeal had to decide whether an arbitral award issued in proceedings under the International Chamber of Commerce Arbitration Rules had to be set aside due to the fact that the award was contrary to public policy. In its assessment, the court took a bold approach. The decision demonstrates that while the court is conscious of the competence and authority of arbitral tribunals, it will assess a case individually and fully when it comes to public policy.
In 2018 the government adopted its new model bilateral investment treaty (BIT). Following this adoption, the government has now obtained the authorisation required to start the renegotiations with eight non-EU countries and conclude new BITs with two others. The government has made clear that the new model BIT is intended to serve as an opening offer that sets the scene for the negotiations. However, as each negotiation will have its own dynamic, it is difficult to predict what the new Dutch BITs will look like.
The Amsterdam Court of Appeal recently had to decide on an application for recognition and enforcement of an online arbitral award regarding a loan in bitcoins. To date, this has been a subject that the Dutch courts have seldom encountered. Notably, the Amsterdam Court of Appeal took a critical approach in what may be considered a test case for recognition and enforcement of online arbitral awards in the Netherlands.
The Netherlands Arbitration Institute (NAI) recently introduced a new transparency policy, which aims to enhance the transparency of arbitral proceedings without harming their confidential nature. This is a promising step by the NAI, which will hopefully contribute to a more cost-effective, efficient and credible arbitration practice in the Netherlands.
In June 2018 a new arbitration court specialised in art-related disputes was launched in The Hague. The court, which offers an attractive and efficient dispute resolution mechanism for cross-border art-related disputes, was founded by the Netherlands Arbitration Institute (NAI) in collaboration with Authentication in Art. According to the NAI's website, it has now started accepting arbitrator and mediator applications for the Court of Arbitration for Art.
The Amsterdam Court of Appeal recently denied jurisdiction against an airline and its ground-handling agent in a case concerning a claim for loss of cargo from the agent's premises at Amsterdam Airport Schiphol. The judgment is relevant for claimants seeking to bring a case against air carriers and their ground-handling agents before the court of the place of destination under Article 33 of the Montreal Convention 1999.
Dutch dismissal law contains certain distinguishing elements which make it unique within Europe. For example, it is based on a dual system, which includes a preventive dismissal assessment. Employers that intend to dismiss employees must be mindful of these unique features. Otherwise, the dismissal attempt may fail, resulting in the nominated employee remaining in the company's employment or the employer paying a higher severance payment to the employee.
For most employers, the threat of high fines has been sufficient to encourage them to try and comply with the EU General Data Protection Regulation (GDPR). Now, more than six months after the GDPR's introduction, the question has arisen as to whether employers' concerns in this regard were justified. Recent case law and an incremental penalty imposed by the Dutch Data Protection Authority show that employers should be taking the GDPR seriously when it comes to personnel files.
According to the European Commission, the growth of flexible contracts in the Dutch labour market, as well as the inequality between flexible contracts and employment contracts for indefinite periods, is a problem. As such, one of the commission's recommendations for the Dutch government is to tackle the barriers to entering into traditional contracts or employment contracts for indefinite periods and facilitate the transition from definite contracts to employment contracts for indefinite periods.
The draft Heat Act 2 recently underwent consultation. This draft bill – which will fundamentally change the regulatory framework for district heating compared with the current Heat Act – aims to advance the energy transition from gas to heat and thus help to fulfil the Dutch Climate Agreement's aims. Further, it aims to stimulate the scale-up of collective heat systems, provide a more transparent tariff scheme and refine various conditions to safeguard security of supply.
Energy audits are essential for assessing existing energy consumption and identifying potential energy-saving measures. They allow companies to identify and prioritise opportunities for improvement, thereby bridging the information gap, which is one of the main barriers to energy efficiency. Various EU countries, including the Netherlands, have taken measures to promote energy audits among companies. This article provides an overview of energy audits and the applicable Dutch reporting requirements.
The government considers green (ie, carbon-free) hydrogen to be essential for achieving its energy transition goals and maintaining energy-intensive industries and wishes to improve the business climate for green hydrogen in the Netherlands. As such, the minister of economic affairs and climate policy recently published the government's Outlook on Hydrogen, which sets out the government's medium and long-term policy objectives in this respect.
In September 2018 the Dutch Banking Association introduced a standard form for a deed of right of superficies (the model deed). The model deed was introduced to promote the financing of solar panels on companies' roofs in the Netherlands and has been well received among market participants. This article examines the background, use and objectives of the model deed.
The government aims to terminate the gas production of the large-scale Groningen Field as soon as possible. The reason for this decision is the Zeerijp earthquake of January 2018. However, immediately reducing production from the Groningen Field to a much lower level would lead to safety and security risks in the Netherlands and neighbouring countries. As such, the next few years will be used to decide on a safe production level and simultaneously safeguard security of supply.
In the Climate Agreement, the government announced its plans to impose a CO2 emissions tax on industrial companies as part of proposed measures to cut greenhouse gas emissions by 49% by 2030 compared with 1990 levels. These plans were further developed in the draft bill concerning a CO2 tax on emissions from industrial installations, which was presented for consultation in April 2020. The levy is now intended to enter into force on 1 January 2021.
The government is working hard to achieve its climate goals and has set new milestones to implement a carbon price floor, a climate agreement and the Climate Act. Further, in a landmark judgment, The Hague Appeal Court recently ordered the government to do more to combat climate change. The appeal court's judgment is unprecedented and may serve as a wake-up call for other governments worldwide.