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NETHERLANDS ARBITRATION
TITLE ONE - ARBITRATION
IN THE NETHERLANDS
SECTION ONE - ARBITRATION AGREEMENT AND APPOINTMENT
OF ARBITRATOR
- Article 1020 - Arbitration agreements in general
- Article 1021 - Form of arbitration agreement
- Article 1022 - Arbitration agreement and substantive
claim before court; arbitration agreement and interim
measures by court
- Article 1023 - Who may be appointed as arbitrator
- Article 1024 - Submission agreement: commencement
of arbitral proceedings
- Article 1025 - Arbitration clause: commencement
of arbitral proceedings
- Article 1026 - Number of arbitrators
- Article 1027 - Appointment of arbitrators
- Article 1028 - Privileged position of a party in
appointing arbitrators
- Article 1029 - Arbitrator's acceptance and release
of mandate
- Article 1030 - Appointment of a substitute arbitrator
- Article 1031 - Termination of the arbitral tribunal's
mandate; tribunal's failure to proceed
- Article 1032 - Death of a party
- Article 1033 - Challenge of an arbitrator: grounds
- Article 1034 - Duty to disclose
- Article 1035 - Challenge of an arbitrator: procedure
SECTION TWO - THE ARBITRAL PROCEEDINGS
- Article 1036 - Determination of rules of procedure
- Article 1037 - Place of arbitration
- Article 1038 - Representation and assistance
- Article 1039 - Equal treatment of parties; hearing;
right to produce witnesses and experts; production
of documents; rules of evidence
- Article 1040 - Default of a party
- Article 1041 - Examination of witnesses
- Article 1042 - Experts appointed by arbitral tribunal
- Article 1043 - Order for personal appearance of
the parties
- Article 1044 - Request for information on foreign
law
- Article 1045 - Third parties
- Article 1046 - Consolidation of arbitral proceedings
- Article 1047 - Section Two not applicable to quality
arbitration
- Article 1048 - Time limit for making the award
SECTION THREE - THE ARBITRAL AWARD
- Article 1049 - Types of award
- Article 1050 - Appeal to second arbitral tribunal
- Article 1051 - Summary arbitral proceedings
- Article 1052 - Pleas as to the jurisdiction of the
arbitral tribunal
- Article 1053 - Separability of the arbitration clause
- Article 1054 - Rules applicable to the substance
of the dispute
- Article 1055 - Enforceability of award notwithstanding
arbitral appeal
- Article 1056 - Penalty for non-compliance
- Article 1057 - Majority decision; refusal of minority
to sign; form and contents of award
- Article 1058 - Notification and deposit of award;
termination of mandate of arbitral tribunal
- Article 1059 - Res judicata of the award
- Article 1060 - Rectification and correction of the
award
- Article 1061 - Additional award
SECTION FOUR - ENFORCEMENT OF THE ARBITRAL AWARD
- Article 1062 - Granting leave for enforcement
- Article 1063 - Refusal of leave for enforcement
SECTION FIVE - SETTING ASIDE AND REVOCATION OF THE
ARBITRAL AWARD
- Article 1064 - Setting aside in general
- Article 1065 - Grounds for setting aside
- Article 1066 - Suspension of enforcement
- Article 1067 - Consequences of setting aside
- Article 1068 - Revocation of the award in case of
fraud, forgery or new documents
SECTION SIX - ARBITRAL AWARD ON AGREED TERMS
SECTION SEVEN - FINAL PROVISIONS
- Article 1070 - No appeal against certain decisions
of President of District Court
- Article 1071 - No attorney required for certain
requests
- Article 1072 - Agreement on competent President
of District Court in certain cases
- Article 1073 - Applicability of Title One to arbitration
within the Netherlands; appointment of arbitrators
in case place of arbitration unknown
TITLE TWO - ARBITRATION OUTSIDE THE NETHERLANDS
- Article 1074 - Foreign arbitration agreement and
substantive claim before Dutch court; foreign arbitration
agreement and interim measures by Dutch court
- Article 1075 - Recognition and enforcement of foreign
award under treaties
- Article 1076 - Recognition and enforcement of foreign award without treaties
|
TITLE ONE - ARBITRATION
IN THE NETHERLANDS
SECTION ONE - ARBITRATION AGREEMENT AND APPOINTMENT
OF ARBITRATOR
Article 1020 - Arbitration agreements in general
- Parties may agree to submit to arbitration disputes
which have arisen or may arise between them out of
a defined legal relationship, whether contractual
or not.
- The arbitration agreement mentioned in paragraph
(1) includes both a submission by which the parties
bind themselves to submit to arbitration an existing
dispute between them and an arbitration clause under
which parties bind themselves to submit to arbitration
disputes which may arise in the future between them.
- The arbitration agreement shall not serve to determine
legal consequences of which the parties cannot freely
dispose.
- Parties may also agree to submit the following matters
to arbitration:
(a) the determination only of the quality or condition
of goods;
(b) the determination only of the quantum of damages
or a monetary debt;
(c) the filling of gaps in, or modification of, the
legal relationship between the parties referred to
in paragraph (1).
- The term "arbitration agreement" includes
an arbitration clause which is contained in articles
of association or rules which bind the parties.
- Arbitration rules referred to in an arbitration agreement shall be deemed
to form part of that agreement.
|
Article 1021 -
Form of arbitration agreement
The arbitration agreement shall be proven by an instrument
in writing.
For this purpose an instrument in writing which provides
for arbitration
or which refers to standard conditions providing for
arbitration is
sufficient, provided that this instrument is expressly
or impliedly
accepted by or on behalf of the other party. |
Article 1022 -
Arbitration agreement and substantive claim before court;
arbitration agreement and interim measures by court
- A court seized of a dispute in respect of which
an arbitration agreement has been concluded shall
declare that it has no jurisdiction if a party invokes
the existence of the said agreement before submitting
a defence, unless the agreement is invalid.
- An arbitration agreement shall not preclude a party from requesting a
court to grant interim measures of protection, or
from applying to the President of the District Court
for a decision in summary proceedings in accordance
with the provisions of article 289. In the latter
case the President shall decide the case in accordance
with the provisions of article 1051.
|
Article 1023 -
Who may be appointed as arbitrator
Any natural person of legal capacity may be appointed
as arbitrator. Unless the parties have agreed otherwise,
no person shall be precluded from appointment by reason
of his nationality. |
Article 1024 -
Submission agreement: commencement of arbitral proceedings
- The submission agreement shall describe the matters
which the parties wish to submit to arbitration.
- The arbitration shall be deemed to have been commenced
by the conclusion of the submission agreement, unless
the parties have agreed to another method of commencement.
- If the parties have agreed that a third person shall appoint the arbitrator
or arbitrators, or any of them, either party shall
send to the third person a copy of the submission
agreement.
|
Article 1025 -
Arbitration clause: commencement of arbitral proceedings
- In the case of an arbitration clause, the arbitration
shall be deemed to have been commenced on the day
of receipt of a notice in writing in which a party
informs the other that he is commencing arbitration.
The said notice shall contain a description of the
matters which the party commencing the arbitration
wishes to submit to arbitration.
- If the parties have agreed that a third person shall
appoint the arbitrator or arbitrators, or any of them,
the party who commences arbitration shall send to
the third person a copy of the notice mentioned in
paragraph (1).
- The parties may agree that the arbitration shall be commenced in a different
method from that provided for in this article.
|
Article 1026 -
Number of arbitrators
- The arbitral tribunal shall be composed of an uneven
number of arbitrators. The arbitral tribunal may also
consist of a sole arbitrator.
- If the parties have not agreed on the number of
arbitrators, or if the agreed method of determining
that number is not carried out and the parties cannot
reach agreement on the number, the number shall, at
the request of either party, be determined by the
President of the District Court.
- If the parties have agreed on an even number of
arbitrators, the arbitrators shall appoint an additional
arbitrator who shall act as the chairman of the arbitral
tribunal.
- Failing agreement between the arbitrators in appointing the additional
arbitrator, such arbitrator shall, unless the parties
have agreed otherwise, be appointed, at the request
of either party, by the President of the District
Court.
|
Article 1027 -
Appointment of arbitrators
- The arbitrator or arbitrators shall be appointed
by any method agreed by the parties. The parties may
entrust to a third person the appointment of the arbitrator
or arbitrators or any of them. If no method of appointment
is agreed upon, the arbitrator or arbitrators shall
be appointed by consensus between the parties.
- The appointment shall be made within two months
after the commencement of the arbitration, unless
the arbitrator or arbitrators have already been appointed.
In the event, however, that any of the cases mentioned
in article 1026(2) occurs, the period of two months
shall start to run on the day on which the number
of arbitrators is determined. The period for appointment
shall be extended to three months if at least one
of the parties is domiciled or has his actual residence
outside the Netherlands. These periods may be shortened
or extended by agreement between the parties.
- If the appointment of the arbitrator or arbitrators
is not made within the period prescribed in the preceding
paragraph, the arbitrator shall, at the request of
either party, be appointed by the President of the
District Court. The other party shall be given an
opportunity to be heard.
- The President or the third person shall appoint the arbitrator or arbitrators
without regard to the question whether or not there
is a valid arbitration agreement. By participating
in the appointment of the arbitrator or arbitrators,
the parties do not forfeit the right to challenge
the jurisdiction of the arbitral tribunal on the ground
of absence of a valid arbitration agreement.
|
Article 1028 -
Privileged position of a party in appointing arbitrators
If the arbitration agreement gives one of the parties
a privileged position with regard to the appointment
of the arbitrator or arbitrators, the other party may,
despite the method of appointment laid down in that
agreement, request the President of the District Court
within one month after the commencement of the arbitration
to appoint the arbitrator or arbitrators. The other
party shall be given an opportunity to be heard. The
provisions of article 1027(4) shall apply accordingly. |
Article 1029 -
Arbitrator's acceptance and release of mandate
- An arbitrator shall accept his mandate in writing.
- An arbitrator who has accepted his mandate may,
at his own request, be released from his mandate either
with the consent of the parties or a third person
designated by the parties, or in the absence thereof,
by the President of the District Court.
- An arbitrator who has accepted his mandate may be
released from his mandate by agreement between the
parties.
- An arbitrator who has accepted his mandate and who has become de jure
or de facto unable to perform his mandate, may, at
the request of either party, be released from his
mandate by a third person designated by the parties,
or in the absence of such third person, by the President
of the District Court.
|
Article 1030 -
Appointment of a substitute arbitrator
- Unless the parties have agreed otherwise, an arbitrator
who has been released from his mandate in accordance
with the provisions of article 1029(2), (3) or (4)
shall be replaced pursuant to the rules applicable
to the initial appointment. The same shall apply to
an arbitrator who has died.
- If the parties have named the arbitrator or arbitrators
in the arbitration agreement, their replacement shall
also take place in the cases prescribed in paragraph
(1) above, unless the parties have agreed that the
arbitration agreement shall terminate in such a case.
- Unless the parties have agreed otherwise, the arbitral proceedings shall
be suspended by operation of law in case of replacement.
Unless the parties have agreed otherwise, the arbitral
proceedings shall, after the suspension ceases, continue
from the stage they had reached.
|
Article 1031 -
Termination of the arbitral tribunal's mandate; tribunal's
failure to proceed
- The parties may agree to terminate the mandate of
the arbitral tribunal.
- At the request of either party and after having heard the other party
and the arbitrator or arbitrators, the third person
designated by the parties, or in the absence thereof,
the President of the District Court, may, having regard
to all circumstances, terminate the mandate of the
arbitral tribunal if, despite repeated reminders,
the arbitral tribunal carries out its mandate in an
unacceptably slow manner. In these circumstances,
the jurisdiction of the court shall revive, unless
the parties have agreed otherwise.
|
Article 1032 -
Death of a party
- Unless the parties have agreed otherwise, neither
the arbitration agreement nor the mandate of the arbitral
tribunal shall terminate by reason of the death of
one of the parties.
- The arbitral tribunal shall suspend the arbitral
proceedings for such period as may be determined by
it. The arbitral tribunal may, at the request of the
legal successors of the deceased party, extend such
period. The arbitral tribunal shall give the other
party an opportunity to be heard in respect of such
request.
- Unless the parties have agreed otherwise, the arbitral proceedings shall,
after any suspension, continue from the stage they
had reached.
|
Article 1033 -
Challenge of an arbitrator: grounds
- An arbitrator may be challenged if circumstances
exist that give rise to justifiable doubts as to his
impartiality or independence. A secretary engaged
by an arbitral tribunal may be challenged on the same
grounds; the provisions of article 1035 shall apply
accordingly to such a challenge.
- A party may only challenge an arbitrator appointed
by him on grounds of which he has become aware after
the appointment has been made.
- A party may not challenge an arbitrator appointed by a third person or
the President of the District Court if he has acquiesced
in this appointment, unless he has become aware of
the ground for challenge after the appointment has
been made.
|
Article 1034 -
Duty to disclose
- A prospective arbitrator or secretary who presumes
that he could be challenged shall disclose in writing
to the person who has approached him the existence
of such grounds.
- A person who has been appointed as arbitrator or secretary shall, if
the parties have not previously been notified, immediately
notify the parties as prescribed in the preceding
paragraph.
|
Article 1035 -
Challenge of an arbitrator: procedure
- The challenge and the grounds therefor shall be
notified in writing by the challenging party to the
challenged arbitrator, the other members of the arbitral
tribunal, the other party and, if a third person has
appointed the challenged arbitrator, this third person.
The arbitral tribunal may suspend the arbitral proceedings
as of the day of receipt of the notification.
- If the challenged arbitrator does not withdraw within
two weeks after the day of receipt of the notification,
the President of the District Court shall, at the
request of either party, decide on the merits of the
challenge. If such request is not made within four
weeks after the day of receipt of the notification,
the right to challenge shall be barred and the arbitral
proceedings, if suspended, shall continue from the
stage they had reached.
- If the challenged arbitrator withdraws, or if the
challenge is upheld by the President of the District
Court, the arbitrator shall, unless the parties have
agreed otherwise, be replaced in accordance with the
rules governing his initial appointment. The provisions
of article 1030(2) and (3) shall apply accordingly.
- If the challenged arbitrator or one or both of the parties is domiciled
or has his actual residence outside the Netherlands,
the periods mentioned in paragraph (2) above shall
be six and eight weeks respectively.
|
SECTION TWO - THE ARBITRAL
PROCEEDINGS
Article 1036 - Determination of rules of procedure
Subject to the provisions of this Title, the arbitral
proceedings shall be conducted in such manner as agreed
between the parties or, to the extent that the parties
have not agreed, as determined by the arbitral tribunal. |
Article 1037 -
Place of arbitration
- The place of arbitration shall be determined by
agreement of the parties, or failing such agreement,
as determined by the arbitral tribunal. The determination
of the place of arbitration establishes also the place
where the award shall be made.
- If the place of arbitration has not been determined
either by the parties or the arbitral tribunal, the
place of making the award as stated by the arbitral
tribunal in the award shall be deemed to be the place
of arbitration.
- The arbitral tribunal may hold hearings, deliberate, and examine witnesses
and experts at any other place, within or outside
the Netherlands, which it deems appropriate.
|
Article 1038 -
Representation and assistance
- The parties may appear before the arbitral tribunal
in person, be represented by a practising lawyer,
or be represented by any other person expressly authorised
in writing for this purpose.
- The parties may be assisted in the arbitral proceedings by any persons
they may choose.
|
Article 1039 -
Equal treatment of parties; hearing; right to produce
witnesses and experts; production of documents; rules
of evidence
- The parties shall be treated with equality. The
arbitral tribunal shall give each party an opportunity
to substantiate his claims and to present his case.
- The arbitral tribunal shall, at the request of either
party or on its own initiative, give the parties an
opportunity of making an oral presentation.
- The arbitral tribunal may, at the request of either
party, allow a party to produce witnesses or experts.
The arbitral tribunal shall have the power to designate
one of its members to examine witnesses or experts.
- The arbitral tribunal shall have the power to order
the production of documents.
- Unless the parties have agreed otherwise, the arbitral tribunal shall
have discretion in the rules of evidence to be applied.
|
Article 1040 -
Default of a party
- If the claimant, without showing good cause, fails
to communicate his statement of claim or duly to explain
the claim, in spite of having had a reasonable opportunity
to do so, the arbitral tribunal may terminate the
arbitral proceedings by means of an arbitral award.
- If the respondent, without showing good cause, fails
to submit his defence, in spite of having been given
a reasonable opportunity to do so, the arbitral tribunal
may render an award forthwith.
- In the circumstances mentioned in paragraph (2) above, the arbitral tribunal
shall render an award in favour of the claimant, unless
it considers the claim to be unlawful or unfounded.
Before rendering an award, the arbitral tribunal may
require the claimant to produce evidence in support
of one or more of his allegations.
|
Article 1041 -
Examination of witnesses
- If an examination of witnesses takes place, the
arbitral tribunal shall determine the time and place
of the examination and the manner in which the examination
shall proceed. If the arbitral tribunal deems it necessary,
it shall examine the witnesses after they have swore
an oath, in the manner proscribed by law, to tell
the truth and nothing but the truth.
- If a witness does not appear voluntarily or, having
appeared, refuses to give evidence, the arbitral tribunal
may allow a party who so requests, within a period
of time determined by the arbitral tribunal, to petition
the President of the District Court to appoint a judge-
commissary before whom the examination of the witness
shall take place. The examination shall take place
in the same manner as in ordinary court proceedings.
The Clerk of the District Court shall give the arbitrator
or arbitrators an opportunity of attending the examination
of the witness.
- The Clerk of the District Court shall communicate
without delay to the arbitral tribunal and the parties
a copy of the record of the examination.
- The arbitral tribunal may suspend the proceedings until the day on which
it has received the record of the examination.
|
Article 1042 -
Experts appointed by arbitral tribunal
- The arbitral tribunal may appoint one or more experts
to give advice. The arbitral tribunal shall communicate
as soon as possible to the parties a copy of the appointment
and the terms of reference of the experts.
- The arbitral tribunal may require a party to provide
the experts with the information required by them
and to give them the necessary cooperation.
- Upon receipt of the expert's report, the arbitral
tribunal shall provide a copy of the report to the
parties without delay.
- At the request of either party, the experts shall
be examined at a hearing. A party wishing to make
such request shall inform the arbitral tribunal and
the opposing party thereof without delay.
- The arbitral tribunal shall give the parties an
opportunity to examine the experts and to produce
their own experts.
- The provisions of article 1041(1) shall apply accordingly.
|
Article 1043 -
Order for personal appearance of the parties
At any stage of the proceedings the arbitral tribunal
may order the parties to appear in person for the purpose
of providing information or attempting to arrive at
a settlement. |
Article 1044 -
Request for information on foreign law
- The arbitral tribunal may, through the intervention
of the President of the District Court at The Hague,
ask for information as mentioned in article 3 of the
European Convention on Information on Foreign Law,
concluded at London, 7 June 1968 (Dutch Treaty Series
1968, 142). The President shall, unless he considers
the request to be without merit, send the request
without delay to the agency mentioned in article 2
of said Convention and notify the arbitral tribunal
thereof.
- The arbitral tribunal may suspend the proceedings until the day on which
it has received the answer to its request for information.
|
Article 1045 -
Third parties
- At the written request of a third party who has
an interest in the outcome of the arbitral proceedings,
the arbitral tribunal may permit such party to join
the proceedings, or to intervene therein. The arbitral
tribunal shall send without delay a copy of the request
to the parties.
- A party who claims to be indemnified by a third
party may serve a notice of joinder on such a party.
A copy of the notice shall be sent without delay to
the arbitral tribunal and the other party.
- The joinder, intervention or joinder for the claim
of indemnity may only be permitted by the arbitral
tribunal, having heard the parties, if the third party
accedes by agreement in writing between him and the
parties to the arbitration agreement.
- On the grant of a request for joinder, intervention, or joinder for the
claim of indemnity, the third party becomes a party
to the arbitral proceedings. Unless the parties have
agreed thereon, the arbitral tribunal shall determine
the further conduct of the proceedings.
|
Article 1046 -
Consolidation of arbitral proceedings
- If arbitral proceedings have been commenced before
an arbitral tribunal in the Netherlands concerning
a subject matter which is connected with the subject
matter of arbitral proceedings commenced before another
arbitral tribunal in the Netherlands, any of the parties
may, unless the parties have agreed otherwise, request
the President of the District Court in Amsterdam to
order a consolidation of the proceedings.
- The President may wholly or partially grant or refuse
the request, after he has given all parties and the
arbitrators an opportunity to be heard. His decision
shall be communicated in writing to all parties and
the arbitral tribunals involved.
- If the President orders consolidation in full, the
parties shall in consultation with each other appoint
one arbitrator or an uneven number of arbitrators
and determine the procedural rules which shall apply
to the consolidated proceedings. If, within the period
of time prescribed by the President, the parties have
not reached agreement on the above, the President
shall, at the request of any party, appoint the arbitrator
or arbitrators and, if necessary, determine the procedural
rules which shall apply to the consolidated proceedings.
The President shall determine the remuneration for
the work already carried out by the arbitrators whose
mandate is terminated by reason of the full consolidation.
- If the President orders partial consolidation, he
shall decide which disputes shall be consolidated.
The President shall, if the parties fail to agree
within the period of time prescribed by him, at the
request of any party, appoint the arbitrator or arbitrators
and determine which rules shall apply to the consolidated
proceedings. In this event the arbitral tribunals
before which arbitrations have already been commenced
shall suspend those arbitrations. The award of the
arbitral tribunal appointed for the consolidated arbitration
shall be communicated in writing to the other arbitral
tribunals involved. Upon receipt of this award, these
arbitral tribunals shall continue the arbitrations
commenced before them and decide in accordance with
the award rendered in the consolidated proceedings.
- The provisions of article 1027(4) shall apply accordingly
in the cases mentioned in paragraphs (3) and (4) above.
- An award rendered under paragraphs (3) and (4) above shall be subject
to appeal to a second arbitral tribunal if and to
the extent that all parties involved in the consolidated
proceedings have agreed upon such an appeal.
|
Article 1047 -
Section Two not applicable to quality arbitration
With the exception of the provisions of article
1037, the provisions of this Section shall not apply
to arbitrations concerning the matters mentioned in
article 1020(4)(a). In that case the proceedings shall
be conducted in the manner agreed upon by the parties
or, to the extent that the parties have not agreed thereon,
as determined by the arbitral tribunal. |
Article 1048 -
Time limit for making the award
The arbitral tribunal is free to determine the time
when the award shall be made. |
SECTION THREE - THE ARBITRAL
AWARD
Article 1049 - Types of award
The arbitral tribunal may render a final award,
a partial final award, or an interim award. |
Article 1050 -
Appeal to second arbitral tribunal
- An appeal from the arbitral award to a second arbitral
tribunal is possible only if the parties have agreed
thereto.
- Unless the parties have agreed otherwise, an appeal
to a second arbitral tribunal from a partial final
award can be lodged only in conjunction with an appeal
from the last final award.
- Unless the parties have agreed otherwise, an appeal
to a second arbitral tribunal from an interim award
can be lodged only in conjunction with an appeal from
a final or partial final award.
- Unless the parties have agreed otherwise, an appeal to a second arbitral
tribunal shall be lodged within three months after
the date of deposit of the award with the Registry
of the District Court.
|
Article 1051 -
Summary arbitral proceedings
- The parties may agree to empower the arbitral tribunal
or its chairman to render an award in summary proceedings,
within the limits imposed by article 289(1).
- In the event that, notwithstanding such agreement,
the case is brought before the President of the District
Court in summary proceedings, he may, if a party invokes
the existence of the said agreement, taking into account
all circumstances, declare to have no jurisdiction
by referring the case to the agreed summary arbitral
proceedings, unless the said agreement is invalid.
- A decision rendered in summary arbitral proceedings
shall be regarded as an arbitral award to which the
provisions of Sections Three to Five inclusive of
this Title shall be applicable.
- In the case of a referral to the summary arbitral proceedings mentioned
in paragraph (2) above, no appeal may be lodged against
the decision of the President of the District Court.
|
Article 1052 -
Pleas as to the jurisdiction of the arbitral tribunal
- The arbitral tribunal shall have the power to decide
on its own jurisdiction.
- A party who appeared in the arbitral proceedings
shall raise a plea that the arbitral tribunal lacks
jurisdiction on the ground that there is no valid
arbitration agreement, unless the plea is made on
the ground that the dispute is not capable of settlement
by arbitration by virtue of article 1020(3), before
submitting a defence; thereafter that party will be
barred from raising this plea in the arbitral proceedings
or in proceedings before the court.
- A party who has participated in the constitution
of the arbitral tribunal may not, in the arbitral
proceedings or in proceedings before the court, raise
the plea that the arbitral tribunal lacks jurisdiction
on the ground that the arbitral tribunal is constituted
in violation of the applicable rules. A party who
has made an appearance in the arbitral proceedings
and who has not participated in the constitution of
the arbitral tribunal, shall raise the plea that the
arbitral tribunal lacks jurisdiction on the ground
that the arbitral tribunal is constituted in violation
of the applicable rules before submitting a defence;
thereafter that party will be barred from raising
this plea in the arbitral proceedings or in proceedings
before the court.
- Any decision in which the arbitral tribunal declares
that it has jurisdiction can be challenged only by
the means of recourse mentioned in article 1064(1)
in conjunction with the challenge of a subsequent
final or partial final award.
- Unless the parties have agreed otherwise, the court
shall have jurisdiction to try the case if the arbitral
tribunal declares that it lacks jurisdiction.
- Appeal to a second arbitral tribunal shall, if agreed, be allowed against
both a decision of the arbitral tribunal that it has
jurisdiction and a decision that it lacks jurisdiction.
In such event the court shall have jurisdiction under
paragraph (4) or (5) above only after a decision is
made on appeal to the second arbitral.
|
Article 1053 -
Separability of the arbitration clause
An arbitration agreement shall be considered and
decided upon as a separate agreement. The arbitral tribunal
shall have the power to decide on the validity of the
contract of which the arbitration agreement forms part
or to which the arbitration agreement is related. |
Article 1054 -
Rules applicable to the substance of the dispute
- The arbitral tribunal shall make its award in accordance
with the rules of law.
- If a choice of law is made by the parties, the arbitral
tribunal shall accordance with the rules of law chosen
by the parties. Failing such choice of law, the arbitral
tribunal shall make its award in accordance with the
rules of law which it considers appropriate. make
its award in
- The arbitral tribunal shall decide as amiable com-
positeur if the parties by agreement have authorised
it to do so.
- In all cases the arbitral tribunal shall take into account any applicable
trade usages.
|
Article 1055 -
Enforceability of award notwithstanding arbitral appeal
Where an appeal from the award to a second arbitral
tribunal is provided for, the arbitral tribunal may
declare its award provisionally enforceable in cases
where the court has the power to do so. The arbitral
tribunal may determine that such enforceability of the
award is subject to the giving of security. |
Article 1056 -
Penalty for non-compliance
The arbitral tribunal has the power to impose a
penalty for non- compliance in cases where the court
has such power. The provisions of articles 611a to 611i
inclusive shall apply accordingly, although in the cases
mentioned in article 611d, an application for the revocation,
suspension or reduction of the penalty shall be made
to the President of the District Court with whose Registry
the original of the award shall be deposited in accordance
with article 1058(1). |
Article 1057 -
Majority decision; refusal of minority to sign; form
and contents of award
- Unless the parties have agreed otherwise, if the
arbitral tribunal is composed of more than one arbitrator,
it shall decide by a majority of votes.
- The award shall be in writing and signed by the
arbitrator or arbitrators.
- If a minority of the arbitrators refuses to sign,
the other arbitrators shall make mention thereof beneath
the award signed by them. This statement shall be
signed by them. A similar statement shall be made
if a minority is incapable of signing and it is unlikely
that this impediment will cease to exist within a
reasonable time.
- In addition to the decision, the award shall contain in any case:
(a) the names and addresses of the arbitrator
or arbitrators;
(b) the names and addresses of the parties;
(c) the date on which the award is made;
(d) the place where the award is made;
(e) the reasons for the decision, unless the award
concerns merely the determination only of the quality
or condition of goods as provided in article 1020(4)(a)
or the recording of a settlement as provided in article
1069.
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Article 1058 -
Notification and deposit of award; termination of mandate
of arbitral tribunal
- The arbitral tribunal shall ensure that without
delay:
(a) a copy of any award, signed by an arbitrator or
the secretary of the arbitral tribunal, is communicated
to the parties;
(b) the original of the final or partial final award
is deposited with the Registry of the District Court
within whose district the place of arbitration is
located.
- Without prejudice to the provisions of articles 1060 and 1061, the mandate
of the arbitral tribunal shall terminate upon the
deposit of the last final award with the Registry.
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Article 1059 -
Res judicata of the award
- Only a final or partial final arbitral award is
capable of acquiring the force of res judicata. The
award shall have such force from the day on which
it is made.
- If, however, an appeal to a second arbitral tribunal is provided for,
the final or partial final award shall have the force
of res judicata from the day on which the time limit
for lodging appeal has lapsed or, if the appeal has
been lodged, the day on which a decision is rendered
on appeal, if and to the extent that the award rendered
at first instance is affirmed on appeal.
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Article 1060 -
Rectification and correction of the award
- Not later than thirty days after the date of deposit
of the award with the Registry of the District Court,
a party may request in writing that the arbitral tribunal
rectify in the award a manifest computing or clerical
error.
- If the details referred to in article 1057(4)(a)
to (d) inclusive are stated incorrectly or are partially
or wholly absent from the award, a party may, up to
thirty days after the date of deposit of the award
with the Registry of the District Court, request in
writing that the arbitral tribunal correct the mistake
or omission.
- A copy of the request mentioned in paragraph (1)
or (2) above shall be communicated by the arbitral
tribunal to the other party.
- An arbitral tribunal may, not later than thirty
days after the date of deposit of the award with the
Registry of the District Court, also make on its own
initiative the rectification or the correction mentioned
in paragraph (1) or (2) above.
- In the event that the arbitral tribunal makes the
rectification or correction, it shall record and sign
it on the original and copies of the award, or set
it out in a separately signed document, which shall
be treated as forming part of the award. The provisions
of articles 1057(1) to (3) inclusive and 1058(1) shall
apply accordingly.
- If the arbitral tribunal rejects the request for
rectification or correction, it shall inform the parties
thereof in writing.
- A request under this article does not suspend enforcement or setting
aside of the award unless the President or the District
Court deems that there are serious reasons for so
doing while a decision on the request is pending.
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Article 1061 -
Additional award
- If the arbitral tribunal has failed to decide on
one or more matters which have been submitted to it,
either party may, not later than thirty days after
the date of deposit of the award with the Registry
of the District Court, request the arbitral tribunal
to render an additional award.
- A copy of the request shall be communicated by the
arbitral tribunal to the other party.
- The arbitral tribunal shall give the parties an
opportunity to be heard before deciding on the request.
- An additional award shall be regarded as an arbitral
award to which the provisions of Section Three to
Five inclusive of this Title shall be applicable.
- If the arbitral tribunal rejects a request for an
additional award, it shall inform the parties accordingly
in writing. A copy of this notification, signed by
an arbitrator or the secretary of the arbitral tribunal,
shall be deposited with the Registry of the District
Court, in accordance with the provisions of article
1058(1).
- If an appeal to a second arbitral tribunal has been agreed, the arbitral
award rendered at first instance may only be supplemented
on appeal. Any request for supplementation shall be
made within the period of time applicable to the lodging
of the appeal.
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SECTION FOUR - ENFORCEMENT
OF THE ARBITRAL AWARD
Article 1062 - Granting leave for enforcement
- Enforcement in the Netherlands of a final or partial
final arbitral award which is not open to appeal to
a second arbitral tribunal, or which is declared provisionally
enforceable, or a final or partial award rendered
on arbitral appeal, can take place only after the
President of the District Court with whose Registry
the original of the award shall be deposited by virtue
of article 1058(1), has, in pursuance of a request
of one of the parties, granted leave for enforcement.
- Leave for enforcement shall be recorded on the original
of the arbitral award or, if no deposit of the arbitral
award has taken place, shall be laid down in a decision.
The Court Clerk shall communicate without delay to
the parties a certified copy of the arbitral award
on which leave for enforcement is recorded or a certified
copy of the decision in which leave for enforcement
is granted.
- If an appeal can be lodged from the award to a second
arbitral tribunal, leave for enforcement of an award
rendered at first instance which is not declared provisionally
enforceable may be granted only after the time limit
for lodging the appeal to a second arbitral tribunal
has lapsed without the appeal having been lodged or
earlier, if the right to appeal is renounced in writing.
- If the President of the District Court grants leave for enforcement,
the means of recourse mentioned in article 1064(1)
shall be the only means of recourse available to the
respondent. The setting aside or the revocation of
an arbitral award causes by operation of law the annulment
of any leave for enforcement.
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Article 1063 -
Refusal of leave for enforcement
- Enforcement of an arbitral award may be refused
by the President of the District Court only if the
award or the manner in which it was made is manifestly
contrary to public policy or good morals, or if enforcement
is provisionally ordered in violation of article 1055,
or if a penalty for non-compliance is imposed in violation
of article 1056. In the latter case, the refusal shall
be limited to the enforcement of the penal sum.
- The Court Clerk shall without delay send to the
parties a certified copy of the President's decision
to refuse leave for enforcement.
- The petitioner may lodge an appeal to the Court
of Appeal against refusal to grant leave for enforcement
within two months after the date on which the decision
is signed.
- If refusal to grant leave for enforcement is affirmed
on appeal, the time limit for recourse to the Supreme
Court shall be two months after the date on which
the decision on appeal is signed.
- If leave for enforcement is granted on appeal or after recourse to the
Supreme Court, the provisions of the first sentence
of article 1062(4) shall apply accordingly.
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SECTION FIVE - SETTING
ASIDE AND REVOCATION OF THE ARBITRAL AWARD
Article 1064 - Setting aside in general
- Recourse to a court against a final or partial final
arbitral award which is not open to appeal to a second
arbitral tribunal, or a final or partial final award
rendered on arbitral appeal, may be made only by an
application for setting aside or revocation in accordance
with this Section.
- An application for setting aside shall be made to
the District Court with whose Registry the original
of the award shall be deposited by virtue of article
1058(1).
- An application for setting aside may be made as
soon as the award has acquired the force of res judicata.
The right to make an application shall be extinguished
three months after the date of deposit of the award
with the Registry of the District Court. However,
if the award together with leave for enforcement is
officially served on the other party, that party may
make an application for setting aside within three
months after the said service, irrespective of whether
the period of three months mentioned in the preceding
sentence has lapsed.
- An application to set aside an interim arbitral
award may be made only in conjunction with an application
for setting aside a final or partial final award.
- All grounds for setting aside shall, on pain of being barred, be mentioned
in the writ of summons.
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Article 1065 -
Grounds for setting aside
- Setting aside of the award can take place only on
one or more the following grounds:
(a) absence of a valid arbitration agreement;
(b) the arbitral tribunal was constituted in violation
of the rules applicable thereto;
(c) the arbitral tribunal has not complied with its
mandate;
(d) the award is not signed or does not contain reasons
in accordance with the provisions of article 1057;
(e) the award, or the manner in which it was made,
violates public policy or good morals.
- The ground mentioned in paragraph (1)(a) above shall
not constitute a ground for setting aside in the case
mentioned in article 1052(2).
- The ground mentioned in paragraph (1)(b) above shall
not constitute a ground for setting aside in the cases
mentioned in article 1052(3).
- The ground mentioned in paragraph (1)(c) above shall
not constitute a ground for setting aside if the party
who invokes this ground has participated in the arbitral
proceedings without invoking such ground, although
it was known to him that the arbitral tribunal did
not comply with its mandate.
- If the arbitral tribunal has awarded in excess of,
or differently from, what was claimed, the arbitral
award shall be partially set aside to the extent that
the part of the award which is in excess of or different
from the claim can be separated from the remaining
part of the award.
- If and to the extent that the arbitral tribunal
has failed to decide one or more matters submitted
to it, the application for setting aside on the ground
mentioned in paragraph (1)(c) above shall be admissible
only if an additional award mentioned in article 1061(1)
is made, or the request for an additional award mentioned
in article 1061(1) has wholly or partially been rejected.
- Notwithstanding the provisions of the second sentence of article 1064(3),
the time limit for making an application for setting
aside mentioned in the preceding paragraph shall be
three months from the date of deposit of the additional
award or the copy of the notification mentioned in
article 1061(5) with the Registry of the District
Court.
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Article 1066 -
Suspension of enforcement
- An application for setting aside shall not suspend
the enforcement of the award.
- However, the court which decides on an application
for setting aside may, at the request of either party,
if it considers the request to be justified, suspend
enforcement until a final decision is made on the
application for setting aside.
- A copy of the request for suspension shall be communicated
by the Court Clerk to the other party without delay.
- The court shall decide on the request after the
other party has been given an opportunity to be heard.
- Upon granting the request, the court may order the
petitioner to give security. Upon denying the request,
the court may order the other party to give security.
- If enforcement is suspended, either party may request the court to lift
the suspension. The provisions of paragraphs (3) to
(5) inclusive shall apply accordingly.
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Article 1067 -
Consequences of setting aside
Unless the parties have agreed otherwise, as soon
as a decision setting aside the award has become final,
the jurisdiction of the court shall revive. |
Article 1068 -
Revocation of the award in case of fraud, forgery or
new documents
- Revocation of the award can take place only on one
or more of the following grounds : (a) the award is
wholly or partially based on fraud which is discovered
after the award is made and which is committed during
the arbitral proceedings by or with the knowledge
of the other party;
(b) the award is wholly or partially based on documents
which, after the award is made, are discovered to
have been forged;
(c) after the award is made, a party obtains documents
which would have had an influence on the decision
of the arbitral tribunal and which were withheld as
a result of the acts of the other party.
- An application for revocation shall be brought before
the Court of Appeal which would have had jurisdiction
to decide on an appeal relating to the application
for setting aside mentioned in article 1064, within
three months after the fraud or forgery has become
known or the party has obtained the new documents.
The provisions of articles 1066 and 1067 shall apply
accordingly.
- Subject to the provisions of the preceding paragraphs, the provisions
of the articles of Book One, Title Ten, shall apply
accordingly.
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SECTION SIX - ARBITRAL
AWARD ON AGREED TERMS
Article 1069
- If during the arbitral proceedings the parties reach
a settlement, the arbitral tribunal may, at the joint
request of the parties, record the contents of the
settlement in the form of an arbitral award. The arbitral
tribunal may refuse the request without giving reasons.
- An arbitral award on agreed terms shall be regarded as an arbitral award
to which the provisions of Sections Three to Five
inclusive of this Title shall be applicable, provided
that :
(a) the award may be set aside only on the ground
that it is contrary to public policy or good morals,
(b) notwithstanding the provisions of article 1057,
the award does not need to contain reasons, and
(c) the award is also signed by the parties.
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SECTION SEVEN - FINAL
PROVISIONS
Article 1070 - No appeal against certain decisions
of President of District Court
No appeal may be lodged against the decisions of
the President of the District Court mentioned in Sections
One to Three inclusive of this Title. |
Article 1071 -
No attorney required for certain requests
In the cases mentioned in articles 1026(2) and (4),
1027(3), 1028, 1044(1), and 1062(1), the application
and if applicable the answer need not be filed by an
attorney. |
Article 1072 -
Agreement on competent President of District Court in
certain cases
The parties may designate by agreement the President
of a specific District Court as the President competent
for the matters mentioned in articles 1026(2) and (4),
1027(3), 1028, 1029(2) and (4), 1031(2), 1035(2) and
1041(2). |
Article 1073 -
Applicability of Title One to arbitration within the
Netherlands; appointment of arbitrators in case place
of arbitration unknown
- The provisions of this Title shall apply if the
place of arbitration is situated within the Netherlands.
- If the parties have not determined the place of arbitration, the appointment
or challenge of the arbitrator or arbitrators or the
secretary engaged by an arbitral tribunal may take
place in accordance with the provisions contained
in Section One of this Title if at least one of the
parties is domiciled or has his actual residence in
the Netherlands.
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TITLE TWO - ARBITRATION
OUTSIDE THE NETHERLANDS
Article 1074 - Foreign arbitration agreement
and substantive claim before Dutch court; foreign arbitration
agreement and interim measures by Dutch court
- A court in the Netherlands seized of a dispute in
respect of which an arbitration agreement has been
concluded under which arbitration shall take place
outside the Netherlands shall declare that it has
no jurisdiction if a party invokes the existence of
the said agreement before submitting a defence, unless
the agreement is invalid under the law applicable
thereto.
- The agreement mentioned in paragraph (1) shall not preclude a party from
requesting a court in the Netherlands to grant interim
measures of protection, or from applying to the President
of the District Court for a decision in summary proceedings
in accordance with the provisions of article 289.
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Article 1075 -
Recognition and enforcement of foreign award under treaties
An arbitral award made in a foreign State to which
a treaty concerning recognition and enforcement is applicable
may be recognised and enforced in the Netherlands. The
provisions of articles 985 to 991 inclusive shall apply
accordingly to the extent that the treaty does not contain
provisions deviating therefrom and provided that the
President of the District Court shall be substituted
for the District Court and the time limit for appeal
from his decision and for recourse to the Supreme Court
shall be two months. |
Article 1076 -
Recognition and enforcement of foreign award without
treaties
- If no treaty concerning recognition and enforcement
is applicable, or if an applicable treaty allows a
party to rely upon the law of the country in which
recognition or enforcement is sought, an arbitral
award made in a foreign State may be recognised in
the Netherlands and its enforcement may be sought
in the Netherlands, upon submission of the original
or a certified copy of the arbitration agreement and
arbitral award, unless:
(A) the party against whom recognition or enforcement
is sought, asserts and proves that:
(a) a valid arbitration agreement under the law applicable
thereto is lacking;
(b) the arbitral tribunal is constituted in violation
of the rules applicable thereto;
(c) the arbitral tribunal has not complied with its
mandate;
(d) the arbitral award is still open to an appeal
to a second arbitral tribunal, or to a court in the
country in which the award is made;
(e) the arbitral award has been set aside by a competent
authority of the country in which that award is made;
(B) the court finds that the recognition or enforcement
would be contrary to public policy.
- The ground mentioned in paragraph (1)(A)(a) above
shall not constitute a ground for refusal of recognition
or enforcement if the party who invokes this ground
has made an appearance in the arbitral proceedings
and, before submitting a defence, has not raised the
plea that the arbitral tribunal lacks jurisdiction
on the ground that a valid arbitration agreement is
lacking.
- The ground mentioned in paragraph (1)(A)(b) above
shall not constitute a ground for refusal of recognition
or enforcement if the party who invokes this ground
has participated in the constitution of the arbitral
tribunal, or if he has not participated in the constitution
of the arbitral tribunal, has made an appearance in
the arbitral proceedings and, before submitting a
defence, has not raised the plea that the arbitral
tribunal lacks jurisdiction on the ground that the
arbitral tribunal is constituted in violation of the
applicable rules.
- The ground mentioned in paragraph (1)(A)(c) above
shall not constitute a ground for refusal of recognition
or enforcement if the party who invokes this ground
has participated in the arbitral proceedings without
raising it, although it was known to him that the
arbitral tribunal did not comply with its mandate.
- If the award is in excess of, or different from,
what was claimed, the arbitral award shall be capable
of partial recognition or enforcement to the extent
that the part of the award which is in excess of or
different from the claim can be separated from the
remaining part of the award.
- The provisions of articles 985 to 991 inclusive
shall apply accordingly, provided that the President
of the District Court shall be substituted for the
District Court, the time limit for appeal from his
decision and for recourse to the Supreme Court shall
be two months, and no documents need be submitted
evidencing the enforceability of the arbitral award
in the country in which it is made.
- If an application for the setting aside of an award
made in a foreign State is made to a competent authority
of the country in which the award is made, the provisions
of article 1066(2) to (6) inclusive shall apply accordingly
when recognition or enforcement is sought in the Netherlands.
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