modernisation of arbitration law (Netherlands)
The bill to modernise arbitration law is being considered by the Dutch House of Representatives. If everything goes well, the law will come into force on 1 January 2014. The aim is to modernise the current rules, whilst the intention is also to improve the Netherlands’ position as an arbitration forum and thus give a boost to the economy. The explanatory memorandum lists the following key changes:
- modernisation such as offering the option of using modern electronic tools (New Code of Civil Procedure art. 1072b), such as sending case documents by e-mail.
- recording ‘best practices’ in law, such as the proposed arrangement relating to the site visit and viewing (New Code of Civil Procedure art. 1042a) and the written phase in the arbitration proceedings (New Code of Civil Procedure art. 1038a to 1038d).
- cost reduction, by allowing the parties to choose whether to have the arbitration award filed with the district court, for which costs are charged.
- Procedural streamlining by limiting the procedure to have an arbitration award set aside to one court, namely the court of appeal (however cassation is possible – New Code of Civil Procedure art. 1064 a paragraph 5).
- the intention is to make the Netherlands more appealing for international arbitration, including by allowing institutional challenge (parties can agree that the challenge is not assessed by the provisional relief court, but by an independent third party such as the arbitral tribunal itself) (New Code of Civil Procedure art. 1035 paragraph 7).
- increasing consumer confidence by the fact that the rules ensure that a dispute between a consumer and a business cannot be settled by arbitration enforcedly. It is proposed that arbitration clauses should be placed on the blacklist of unreasonably onerous clauses (Civil Code section 6:236). The rules offer the consumer who is confronted with an arbitration clause in general terms and conditions a one month period in order to consider whether he would not rather submit the dispute to the public courts. If the arbitration clause does not offer this choice, it is by definition unreasonably onerous. The above does not detract from the option of agreeing after the dispute has arisen that it should be submitted to arbitration (arbitration agreement).
The bill largely draws up on the Uncitral Model Law for international commercial arbitration and emphasises the autonomy of the parties.
The aim is to for the proposed rules to apply to arbitrations which are instituted on or after 1 January 2014. We look forward to seeing whether the ambitious aims of this bill will actually bring about the anticipated modernisation and will therefore follow developments in this regard with interest.