ARBITRATION

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THE NETHERLANDS 3.3.3 What is the approach of national courts to parties who commence court proceedings in your jurisdiction or elsewhere in breach of an agreement to arbitrate? If a party invokes the existence of an arbitration agreement before submitting its defence, a court will generally declare that it has no jurisdiction unless the arbitration agreement is invalid (Articles 1022 and 1074, DCCP). The Dutch courts will generally not grant anti-suit injunctions. In international matters governed by the European Brussels I Regulation, the European Court of Justice (ECJ) has ruled that anti-suit injunctions, which restrain a person from commenting on proceedings before the courts of another member state on the ground that such proceedings are contrary to an arbitration agreement, are incompatible with this regulation and are therefore not allowed (ECJ, 10 February 2009, Case C-185/07 (Allianz v West Tankers)). It is, however, questionable whether the ECJ will maintain this ruling under the new Brussels I Regulation (recast), effective as per 1 January 2015 (cf Opinion of Advocate General Wathelet, 4 December 2014, Case C-536/13 (Gazprom OAO)). See further Section 3.3.1 above. 3.3.4 Is there a presumption of arbitrability or policy in support of arbitration? Have national courts shown a willingness to interfere with arbitration proceedings on any other basis? National courts are very reluctant to interfere in arbitral proceedings. In the context of attempts to set aside awards, pursuant to case law of the Dutch Supreme Court, national courts are required to exercise restraint in their examination of the existence of grounds for setting aside the relevant award. See Section 5.1 below. 3.3.5 Are there any other legal requirements for arbitral proceedings to be recognisable and enforceable? See Section 5.1 below. 3.4 Procedural flexibility and control 3.4.1 Are specific procedures mandated in particular cases, or in general, which govern the procedure of arbitrations or the conduct of an arbitration hearing? To what extent can the parties determine the applicable procedures? Article 1036(1) of the DCCP provides that in principle, arbitral proceedings are to be conducted in the manner agreed between the parties. To the extent that the parties have not agreed upon the conduct of the arbitral proceedings, the arbitral proceedings shall be conducted in the manner determined by the arbitral tribunal. The Revised Arbitration Act does not stipulate specific procedures for particular cases, but it does set out certain basic rules of arbitral proceedings, for example, the appointment of an arbitral tribunal, the principles of a fair hearing, the determination of the place of the arbitration, the submissions of written statements and the right to an oral hearing. The parties are allowed, however, to deviate from these rules to a large extent. Only a few of the provisions in the Arbitration Act are qualified as mandatory provisions, for example, the equal treatment of the parties by the arbitral tribunal (Article 1036(2), DCCP). 706 INTERNATIONAL SERIES
THE NETHERLANDS 3.4.2 Are there any requirements governing the place or seat of arbitration, or any requirement for arbitral hearings to be held at the seat? The place of arbitration is determined by agreement between the parties, or, failing such agreement, by the arbitral tribunal (Article 1037(1), DCCP). If the place of arbitration has not been determined by either the parties or the arbitral tribunal, the place where the award was rendered (as stated in the award) shall be deemed to be the place of arbitration (Article 1037(2), DCCP). The arbitral tribunal may hold hearings, deliberate, examine witnesses and expertsand so on at any place, within or outside the Netherlands, which it considers appropriate, unless the parties have agreed otherwise (Article 1037(3), DCCP). 3.4.3 What procedural powers and obligations does national law give or impose on an arbitral tribunal? The arbitral tribunal has the power to: • Give the parties an opportunity to present their case at an oral hearing on its own initiative unless otherwise agreed by the parties (Article 1038b, DCCP). • Order to inspect, or to obtain a copy or excerpt of, certain records relating to the dispute from the party in possession of such records, on its own initiative unless otherwise agreed by the parties (Article 1040(2), DCCP). • Order parties to provide evidence by means of hearing witnesses and experts, on its own initiative unless otherwise agreed by the parties (Article 1041(2), DCCP). • Conduct a site visit or inspect objects in or outside of the Netherlands unless otherwise agreed by the parties, (Article 1042a, DCCP). • At any stage of the proceedings order the parties to participate in a hearing for the purpose of providing information or attempting to arrive at a settlement (Article 1043, DCCP). • Terminate the arbitral proceedings, by issuing an award or in another manner, if the claimant fails to submit or sufficiently substantiate its claim, without providing valid reasons therefor and despite having had sufficient opportunity to do so (Article 1043a, DCCP). • Permit a party who has an interest in the arbitral proceedings to join or intervene in the proceedings, provided that the arbitration agreement applicable to the original parties applies or shall be appled between the parties and the third party, unless the parties have agreed otherwise (Article 1045(1), DCCP). • Determine the moment at which the award shall be rendered (Article 1048, DCCP). • Decide on its own jurisdiction (Article 1052(1), DCCP). • In the event that the national court has the power to impose a penalty for non-compliance, the tribunal shall have such power as well (Article 1056, DCCP). • At the joint request of the parties, record the contents of a settlement in the form of an arbitral award, or refuse this request without giving reasons (Article 1069(1), DCCP). INTERNATIONAL SERIES 707
Page 1 and 2: Written by leading practitioners in
Page 3 and 4: General Editors Karyl Nairn QC & Pa
Page 5 and 6: CONTENTS WIPO ARBITRATION AND MEDIA
Page 7 and 8: FOREWORD Karyl Nairn QC & Patrick H
Page 9 and 10: THE NETHERLANDS Dirk Knottenbelt *
Page 11 and 12: THE NETHERLANDS • Finally, the Re
Page 13 and 14: THE NETHERLANDS 3.1.3 Are there alt
Page 15: THE NETHERLANDS “arbitration is c
Page 19 and 20: THE NETHERLANDS Moreover, at the re
Page 21 and 22: THE NETHERLANDS shall be conducted
Page 23 and 24: THE NETHERLANDS 3.6.5 What, if any,
Page 25 and 26: THE NETHERLANDS 5. CHALLENGING ARBI
Page 27 and 28: THE NETHERLANDS failed to decide on
Page 29 and 30: CONTACT DETAILS GENERAL EDITOR Kary
Page 31 and 32: CONTACT DETAILS ARBITRATION INSTITU
Page 33 and 34: CONTACT DETAILS GERMANY Prof Dr Rol
Page 35: CONTACT DETAILS t +82 2 772 4000 f

ARBITRATION

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