Arbitration

Arbitration agreements

What are the formal requirements for an enforceable arbitration agreement?

The DCCP does not provide for any specific requirements as to the form of an arbitration agreement. Thus, it is possible for parties to conclude an oral arbitration agreement.

If the existence of a valid arbitration agreement is disputed, proof of the agreement’s existence must be provided in the form of documentary evidence (article 1021 DCCP). No other type of evidence is admissible.

If the existence of a valid arbitration agreement is not disputed, the tribunal must assume jurisdiction, save in some exceptional circumstances, for example when the matter is not capable of settlement by arbitration.

Arbitral procedure

Does the domestic law contain substantive requirements for the procedure to be followed?

The DCCP supports the rights of the parties to agree on their own set of procedural rules for arbitrations taking place within the Netherlands. Basic norms of fairness, due process and the equal treatment of the parties must always be respected. As a general rule, the parties are allowed to file a statement of claim and statement of defence. A tribunal shall, at the request of one of the parties or at its own motion, give the parties the opportunity to present their case orally at a hearing. Arbitrators are not bound by any procedural or substantive rule of evidence and shall be free to determine the rules of evidence, the admissibility of evidence and assessment of the evidence and the burden of proof, unless the parties have agreed otherwise.

Award

When and in what form must the award be delivered?

The DCCP contemplates different types of awards that may be rendered by a tribunal. A tribunal may render a final award, a partial final award, an interim award, an award correcting an error in a previous award, an additional award if the tribunal failed to decide a claim in the final award, and a new (final) award after the case has been remitted.

An award must meet several formal requirements. Unless otherwise agreed upon, it must be based on a majority decision of the tribunal. An award must be in writing and signed by the arbitrators. The names and places of residence of the arbitrators must be mentioned, as well as the names and places of residence of all the parties involved. An award must also state the date on which it is made as well as the place thereof. Last but not least the arbitral award must have a reasoned decision, although the parties may waive this right under article 1057(5) DCCP. There are no statutory time limits within which a final award must be rendered.

Appeal

On what grounds can an award be appealed to the court?

The Netherlands Arbitration Act explicitly allows for the parties to agree on arbitral appeal proceedings. An award cannot, however, be appealed in the courts. The DCCP allows parties to apply to the court seeking the setting aside or revocation of an award. Such proceedings must be commenced before the court of appeals in whose judicial district the place of arbitration is located. Thereafter appeal may be lodged with the Supreme Court, unless the parties have validly waived that right. A natural person not acting in the conduct of a trade or business cannot waive this right.

An award can be set aside only on one of the following grounds set forth in article 1065 DCCP: (i) the absence of a valid arbitration agreement; (ii) the constitution of an arbitral tribunal in violation of the applicable rules; (iii) breach by the tribunal of its mandate; (iv) failure to sign the award or provide a reasoned basis for the award; or (v) the violation of public policy.

An award may be revoked if it was rendered on fraudulent grounds. Also, a party may seek to revoke an award if it demonstrates that the documentary evidence upon which the award is based, either partially or wholly, is later on found to have been forged, or if documents come to light after the rendering of the award that would have had an influence on the decision of the tribunal, and such documents were withheld because of acts of the opposing party.

The court of appeal may remit the case to the tribunal to reverse a ground for the setting aside or the revocation. Remission can also result in a substantially different decision. Remission is, however, not possible if it should be found that a valid arbitration agreement is lacking.

Enforcement

What procedures exist for enforcement of foreign and domestic awards?

Parties seeking to enforce arbitral awards must first obtain an exequatur from the competent district court. The DCCP distinguishes between domestic awards (articles 1062-1063 DCCP), awards that are rendered in countries that are party to the New York Convention or that are party to other treaties with the Netherlands (article 1075 DCCP) and awards that are rendered in countries that are not party to a relevant treaty with the Netherlands (article 1076 DCCP). Exequaturs for domestic awards will generally be rendered after ex parte proceedings; no appeal is in principle possible if an exequatur is granted. Leave for enforcement for foreign awards will, however, only be granted after proceedings in which the party against whom leave for enforcement is sought has been given the possibility to present its arguments against the requested exequatur. In practice, the grounds upon which a court may refuse enforcement are largely the same for awards rendered outside the ambit of the New York Convention as those where no treaty is applicable, but there are differences. If the New York Convention is applied and an exequatur is granted, the party against whom an exequatur was granted may in principle not appeal. Appeal is, however, possible for the party whose exequatur application was denied.