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The Netherlands publishes New Arbitration Act

06 June 2014
The current Netherlands Arbitration Act dates from 1986 and was one of the most modern national arbitration laws at the time. On 27 May 2014, the Dutch Parliament published a new Netherlands Arbitration Act (the New Arbitration Act), with a view to keeping up with developments in international arbitration and trying to make the Netherlands more attractive for international arbitrations.

The New Arbitration Act will enter into force on 1 January 2015.

Below please find a summary of the most important changes:

Arbitrating electronically

The New Arbitration Act explicitly creates the possibility for the entire arbitration proceedings to take entirely place by electronic means. An electronic arbitral award with an electronic signature will be qualified as the equivalent of an original and certified copy of the award.

The length of annulment proceedings

The court of appeals will have jurisdiction over annulment proceedings of arbitral awards, which limits these proceedings to two instances (i.e. the Court of Appeal and the Dutch Supreme Court). This aims to limit the time and costs of annulment proceedings. On the basis of the New Arbitration Act the parties may even agree to waive the right to file appeal in cassation at the Supreme Court.

Limited revival of the jurisdiction of the state court

If an arbitral award is annulled, the jurisdiction of the state court will only revive in case the arbitral award has been annulled on the basis of lack of a valid arbitration agreement, unless the parties have agreed otherwise.

Challenges to arbitrators

Parties may request arbitrator challenges to be determined by an independent third party (for example an arbitration institution). Under the current regime challenges can only be submitted to the state court.

Measures by the Dutch courts in aid of foreign arbitration proceedings

On the basis of the New Arbitration Act, a party will be able to request the Dutch courts to take measures in relation to foreign arbitration proceedings (i.e. arbitration proceedings seated outside the Netherlands). The measures may include attachment of assets located in the Netherlands, urgent relief measures or disclosure of documents.

Provisional measures by arbitral tribunals

The New Arbitration Act also introduces the possibility of enforcing an arbitral order containing interim measure(s) through the Dutch state courts. This will allow parties to enforce such arbitral orders as arbitral awards in the Netherlands.

Procedural autonomy of the parties

The New Arbitration Act provides parties with broader possibilities to derogate by agreement from the Netherlands Arbitral Act. As a result of this parties can have more influence on the course and content of the arbitration proceedings, including for example, reaching agreements as to the use of particular rules of evidence, on the possibility of there being an arbitral appeal of an award, dispensing with oral hearing, or limiting the powers of the tribunal in certain ways.

 

 

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