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First Lustrum of the New Dutch Arbitration Act

Published online by Cambridge University Press:  21 May 2009

P. Sanders
P. Sanders
Affiliation:
Honorary President, Netherlands Arbitration Institute; Professor Emeritus, Faculty of Law, Erasmus University of Rotterdam; Honorary President, International Council for Commercial Arbitration
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Extract

The new Dutch Arbitration Act (Articles 1020–1076, Book IV of the Code of Civil Procedure) entered into force on 1 December 1986. After five years of experience with the new Act, the time has come to draw up a provisional account of its reception by the courts. More than 50 court decisions have been reported and annotated by me in the Tijdschrift voor Arbitrage (TvA) a bi-monthly arbitration periodical (in Dutch). It is on the basis of this material that this contribution has been written. Of course, not all of these decisions will be referred to; a choice had to be made as will be seen from the headings which follow.

Type
Research Article
Information
Netherlands International Law Review , Volume 39 , Special Issue S1: Law and Reality , October 1992 , pp. 267 - 277
Copyright
Copyright © T.M.C. Asser Press 1991

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References

1. See Sanders, P. and van den Berg, A.J., The Netherlands Arbitration Act 1986 (1987).Google Scholar In this publication (190 p.) the new law is translated and annotated in English, French and German. The Dutch Code of Civil Procedure is hereafter cited as CCP.

2. Kantongerecht [Lower District Court] Zierikzee 19 February 1988, TvA (1988), p. 147.

3. Hoge Raad der Nederlanden (HR) [Supreme Court of the Netherlands] 23 March 1990, NJ 1991 no. 214; TvA (1990), p. 169, confirmed the annulment by the lower courts.

4. Under the old law the question was debated whether, when arbitration was agreed upon, a party could still apply to the President of the District Court in summary proceedings for an injunction. In conformity with what was generally accepted the new law solved mis question.

5. Rechtbank (Rb.) [District Court] Amsterdam 25 April (1989), TvA (1989), p. 125.

6. Rb. Groningen 29 August 1990, TvA (1991), p. 28. Annulled by the Gerechtshof (Hof) [Court of Appeal] Leeuwarden, see n. 7.

7. — Rb. Haarlem 18 October 1988, TvA (1989), p. 59.

— Rb.'s-Hertogenbosch 7 December 1988, TvA (1989), p. 60.

— Hof's-Hertogenbosch 16 March 1990, NJ 1990 no. 620; TvA (1990), p. 137.

— Hof Leeuwarden 26 June 1991, TvA (1991), p. 232.

8. Pres. Rb. Rotterdam 23 November 1987, TvA (1988), p. 78.

9. A privileged position was deemed to exist by:

— Pres. Rb. Zwolle 10 November 1987, NJ 1989 no. 118; TvA (1989), p. 62.

— Pres. Rb. Den Haag 23 February 1987, TvA (1987), p. 92.

10. Pres. Rb. Rotterdam 1 May 1987, TvA (1987), p. 152.

11. Pres. Rb. Amsterdam 29 December 1988, TvA (1989), p. 103.

12. Pres. Rb. Amsterdam 11 October 1990, TvA (1991), p. 79.

13. Pres. Rb. Amsterdam 15 November 1990, TvA (1991), p. 80.

14. Art. 289 is the first article of the section of the Dutch CCP (Arts. 289–297) regulating summary proceedings before the President of the District Court when the circumstances of the case urgently require a provisional measure to be ordered.

15. Pres. Rb. Utrecht 9 June 1989, KG 1989 no. 283; TvA (1989), p. 162.

16. — Rb. Utrecht 28 July 1989, TvA (1990), p. 14.

— Rb. Arnhem 3 January 1991, TvA (1991), p. 116.

Only Rb. Amsterdam 24 June 1987, TvA (1988), p. 22 considered mat ‘possibly’ an award with ‘such untenable reasons that it is equal to no reasons at all’ could be set aside.

17. Rb. Rotterdam 8 March 1991, TvA (1991), p. 182.

18. Rb. Utrecht 5 April 1989, TvA (1990), p. 10.

19. Hof Den Haag, 31 10 1984Google Scholar, NJ 1985 no. 827; TvA (1986), p. 28. This decision was made under the old law.

20. Hof Amsterdam 23 May 1958, NJ 1958 no. 465. This decision also was made under the old law, but is still relevant.

21. See HR 2 November 1990, NJ 1991 no. 123; TvA (1991), p. 76.

22. Rb. Amsterdam 24 June 1987, TvA (1988), p. 22.

23. Hof Amsterdam as appears from HR 20 May 1988, NJ 1988 no. 778; TvA (1989), p. 28.

24. Pres. Rb. Amsterdam 24 April 1991, TvA (1991), p. 184.

25. Hof Leeuwarden 28 September 1988, NJ 1989 no. 342; TvA (1989), p. 127.

26. Hof Leeuwarden 28 June 1989, NJ 1989 no. 848; TvA (1990), p. 40.

27. Rb. Utrecht 5 April 1989, TvA (1990), p. 10.

28. The Rules of the NAI are rather detailed. For convenience of the users, a considerable number of the provisions of the new Arbitration Act are incorporated in the Rules. Normally it will be hardly necessary to consult the Act in addition to the Rules.

29. In Dutch practice the arbitrators, as a rule, are authorised to decide as amiables compositeurs.