NETHERLANDS: NEW STATUTE ON ARBITRATION

NETHERLANDS: NEW STATUTE ON ARBITRATIONAuthor(s): Emmanuel GaillardSource: International Legal Materials, Vol. 26, No. 4 (JULY 1987), pp. 921-948Published by: American Society of International LawStable URL: http://www.jstor.org/stable/20693133 .

Accessed: 16/06/2014 01:30

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at .http://www.jstor.org/page/info/about/policies/terms.jsp

.JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range ofcontent in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new formsof scholarship. For more information about JSTOR, please contact [email protected].

.

American Society of International Law is collaborating with JSTOR to digitize, preserve and extend access toInternational Legal Materials.

http://www.jstor.org

This content downloaded from 195.34.79.20 on Mon, 16 Jun 2014 01:30:52 AMAll use subject to JSTOR Terms and Conditions

http://www.jstor.org/action/showPublisher?publisherCode=asil

http://www.jstor.org/stable/20693133?origin=JSTOR-pdf

http://www.jstor.org/page/info/about/policies/terms.jsp


921

NETHERLANDS: NEW STATUTE ON ARBITRATION* [July 2, 1986}

+Cite as 26 I.L.M. 921 (1987)+

Introductory Note -

by.

-

Emmanuel Gai11ard

On July 2, 1986, the Dutch Parliament adopted a statute modernizing Dutch law on arbitration. Although it dp?s not technically distinguish between domestic and international arbitration, this statute, following the trend initiated by the United Kingdom [1979 Arbitration Act, 18 I.L.M. 1249 (1979)], France [Decree of May 12, 1981, 20 I.L.M. 917 (1981)], and Belgium [March 27, 1985 Statute, 25 I.L.M. 725 (1986)], clearly purports to liberalize Dutch law on international arbitration. The travaux pr?paratoires states that it does not substantially depart from the UNCITRAL Model Law on International Commercial Arbitration [24 I.L.M. 1302 (1985)]. The statute came into force on December 1, 1986, and applies to pending arbitration cases.

The statute purports to cover both arbitration taking place in the Netherlands (Articles 1020 to 1073) as well as "arbitration outside of the Netherlands" (Articles 1074 to 1076) for recognition and enforcement purposes. It complements the Act of November 1, 1980 on Recognition and Enforcement of ICSID Awards which reads, in its sole Article, "1. Recognition and enforcement in the Netherlands of a decision by virtue of the Treaty of Washington of March 18, 1965 relating to the Settlement of Investment Disputes Between States and Nationals of Other States . . . may be requested . . . from the President of the District Court of the Hague . . .

4. Disputes arising out of the enforcement shall be brought before the court of the place of enforcement. . ."

Some provisions of the new statute are classic, at least in continental Europe: (1) the requirement for the arbitration agreement to be proven in writing (Article 1021); (2) the competenz-competenz principle according to which courts will not interfer with the appraisal of the arbitrators, jurisdiction prior to the rendering of the arbitral award (Article 1052); (3) the severability of the arbitration agreement from the main contract whose annulment will not automatically lead to that of the arbitration agreement (Article 1053); (4) the rule according to which the award can be set aside only for a limited number of explicit grounds (Article 1065).

*[Reproduced from the English translation provided to International Legal Materials by Professor J.C. Schultsz of Blackstone, Rueb & Van Boeschoten, Amsterdam. Portions of the English text also appear in "Legislation in the Netherlands and International Arbitration," Medelelingen van de Nederlandse Vereniging voor International Recht, Kluwer 1986.

[The Introductory Note was prepared for International Legal Materials by Emmanuel Gaillard, I.L.M. Corresponding Editor for France, Professor of International Commercial Law and European Counsel, Shearman & Sterling, Paris.]



922

Other provisions are more noteworthy, namely: (1) the rule, drawn from the French 1981 Decree, according to which "in all cases, the arbitral tribunal shall take into account the applicable usages of the trade"; (2) the possibility given to the Amsterdam District Court, upon request by one of the parties to consolidate, in whole or in part, any number of arbitral proceedings (Article 1046).

It should also be noted that the Netherlands is a party to the

1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards.

I.L.M. Content Summary

BOOK 4 OF THE CODE OF CIVIL PROCEDURE OF THE NETHERLANDS: ARBITRATION

Title 1: Arbitration in the Netherlands

Chapter 1: The arbitration agreement and the appointing of the arbitrator, Arts. 1020-1035

- I.L.M. page 923

[appointment of arbitrator; the compromis; the arbitral

tribunal; removal of the arbitrator; suspension of arbitral tribunal; death of a party; challenging an

arbitrator]

Chapter 2: The arbitration proceedings, Arts. 1036-1048 - I.L.M.

page 929 [place of arbitration; equal treatment;

production of documents; hearings; use of experts; joinder, intervention or guarantee proceedings]

Chapter 3: The

Chapter 4:

Chapter 5:

Chapter 6:

Chapter 7 :

'he arbitral award, Arts. 1049-1061 - I.L.M. page 934

full, partial or interim award; arbitral appeal ;

injunction orders ; jurisdiction; voting; contents of

award; amendment; supplementary award]

The enforcement of the arbitral award, Arts. 1062-1063 I.L.M. page 940

The annulment of the arbitral award and the "request civiel", Arts. 1064-1068 - I.L.M. page 941 [grounds for annulment; suspension of enforcement; grounds for revocation after "request civiel"]

The arbitral award containing a settlement between the

parties, Art. 1069 - I.L.M. page 944

Final dispositions, Arts. 1070-1073 - I.L.M. page 944

Title II: Arbitration outside of the Netherlands, Arts. 1074-1076 I.L.M. page 945

Transitory Provisions: Arts. II - VI - I.L.M. page 947



923

BOOK 4 OF THE CODE OF CIVIL PROCEDURE OF THE NETHERLANDS -

- ARBITRATION

Title 1 - Arbitration in the Netherlands

Chapter 1 - The arbitration agreement and

the appointing of the arbitrator_

Article 1020

1. Parties may, in an agreement, submit to arbitration disputes

which have arisen or may arise between them in respect of a

defined legal relationship, whether or not arising out of an

agreement.

2. The arbitration agreement, referred to in the first paragraph,

relates both to the "compromis" by which the parties bind them

selves to submit to arbitration a dispute existing between them,

and to the arbitration clause by which the parties bind themselves

to submit to arbitration disputes which may arise between them.

3. The arbitration agreement cannot lead to the determination of

legal consequences of which the parties do not have free disposal.

4. By agreement the following may also be submitted to arbi

tration:

a. the sole determination of the quality or the condition of goods;

b. the sole determination of the amount of damages or of a sum of

money which is due; c. the supplementing or modifying of the legal relationship

referred to in paragraph 1.

5. As arbitration agreement shall also be considered an arbi

tration clause contained in articles of association or bye-laws

which bind the parties.

6. Arbitral rules to which reference is made in an arbitration

agreement shall be deemed to be part of such agreement.

Article 1021

The arbitration agreement shall be proven by a writing. To that

effect shall suffice a document which provides for arbitration or

which refers to general conditions which provide for arbitration



924

or which refers to general conditions and which has been expressly or tacitly accepted by or on behalf of the other party.

Article 1022

1. The court before which a dispute is brought with regard to

which an arbitration agreement has been made, shall declare itself

to be without jurisdiction if a party, prior to all other

defences, invokes the existence of such agreement, unless the

agreement is invalid.

2. An arbitration agreement does not prevent a party from bringing the matter before the ordinary courts in order to obtain a con

servatory measure or before the president of the district court

in injunction proceedings according to Article 289; in such a

case the latter shall decide with due observance of Article 1051.

Article 1023

Any natura^ person with full legal capacity may be appointed as an

arbitrator. No person shall be excluded from such right by reason

of his nationality, unless the parties agreed otherwise.

Article 1024

1. The "compromis" shall indicate the dispute which the parties

wish to submit to arbitration.

2. As a consequence of the making of the "compromis" the matter

shall be pending, unless the parties had agreed to another matter

of causing the matter to be pending.

3. Where the parties had agreed that the appointing of the arbi

trator or arbitrators or one or more of them shall be effectuated

by a third party, the appropriate party shall send to such third

party a copy of the "compromis".

Article 1025

1. Where there is an arbitration clause the matter shall be pen

ding on the day of receipt of the written communication with which

a party informs the other party that it wishes to institute arbi

tration proceedings. Such communication shall indicate the dispute

which the party which institutes proceedings wishes to submit to

arbitration.



925

2. Where the parties had agreed that the appointing of the arbi

trator or arbitrators or one or more of them shall be effectuated

by a third party, the party which institutes arbitration pro

ceedings shall send to such third party a copy of the communi

cation referred to in the first paragraph.

3. Parties may agree that the matter shall become pending in

another way than foreseen in this chapter.

Article 1026

1. An arbitral tribunal shall have arbitrators of an uneven

number. It may also consist of one arbitrator.

2. In case the parties did not agiee as to the number of arbi

trators, or if an agreed way of determining the number is not

performed and the parties do not as yet agree as to the number,

such number shall be determined by the president of the district

court at the request of the most appropriate party*

3. If the parties agreed to an even number of arbitrators, such

arbitrators shall appoint a supplementary arbitrator as president

of the arbitral tribunal.

4. If the arbitrators are unable to agree, such supplementary

arbitrator shall be appointed by the president of the district

court at the request of the most appropriate pafcty, unless the

parties agreed otherwise.

Article 1027

1. The arbitrator or arbitrators shall be appointed in the manner

agreed by the parties. The parties may entrust to a third party

the appointment of the arbitrator or arbitrators or one or more of

them. If no appointment procedure has been agreed upon, the arbi

trator or arbitrators shall be appointed by the parties jointly.

2. The appointment shall take place within two months as from the

date ?n which the matter is pending unless the arbitrator or

arbitrators had already been appointed prior to that time. If,

however, one of th? cases referred to in Article 1026, para

graph 2, occurs, the period of two months shall start ori the day on which the number of arbitrators shall have been determined.

This period shall be three months if at least one of the parties



926

has its domicile or residence outside of the Netherlands. The

periods may be extended or shortened by agreement of the parties.

3. If the appointment of the arbitrator or arbitrators does not

take place within the period mentioned in the preceding paragraph

they shall be appointed by the president of the district court at

the request of the most appropriate party. The other party shall

be given the opportunity to be heard.

4. The president or the third party shall appoint the arbitrator

or arbitrators irrespective of the validity of the arbitration

agreement. By co-operating in the appointment of the arbitrator or

arbitrators the parties shall not lose the right to invoke the

lack of jurisdiction of the arbitral tribunal because of the

absence of a valid agreement to arbitrate.

Article 1028

If in the arbitration agreement a privileged position with respect

to the appointment of the arbitrator or arbitrators has been given

to one of the parties, the other party may, in derogation from the

appointment procedure set out in that agreement, request the

president of the district court, within one month as from the date

on which the arbitration will be pending, to appoint the arbi

trator or arbitrators. The other party, not being the requesting

party, shall be given the opportunity to be heard. Article 1027,

paragraph 4, shall apply "mutatis mutandis".

Article 1029

1. An arbitrator shall accept his mandate in writing.

2. An arbitrator who has accepted his mandate may be relieved

from it at his own request either with the consent of the parties

or by a third party appointed by the parties or, failing such

third party, by the president of the district court.

3. An arbitrator who has accepted his mandate may be relieved from

his mandate by the parties jointly.

4. An arbitrator who has accepted his mandate may, if either "de

iure" or "de facto" he is unable to fulfil his mandate, be re

lieved from his mandate, at the request of one of the parties, by

a third party appointed by the parties or, failing such third

party, by the president of the district court.



927

Article 1030

1. An arbitrator who, by application of Article 1029, second,

third or fourth paragraph has been relieved from his mandate,

shall be replaced according to the rules which applied to the

original appointment, unless the parties had agreed to a different

way of appointing. The aforegoing shall also apply in case of

decease of an arbitrator.

2. Where the parties in the arbitration agreement designated (a)

specific person(s) as arbitrator(s), their replacement shall also

take place in the cases set out in the first paragraph, unless th?

parties had agreed that in such eventuality the arbitration agree

ment will come to an end.

3. In case of replacement the proceedings shall be suspended by

law, unless the parties agreed otherwise. After the suspension the

proceedings shall be resumed in the position which they had,

unless the parties had agreed otherwise.

Article 1031

1. The parties jointly may bring to an end the mandate of the

arbitral tribunal.

2. At the request of the appropriate party a third party desig

nated by the parties or, failing such third party, the president

of the district court, having heard the other party and the arbi

trator or arbitrators, may bring to an end the mandate of the

arbitral tribunal in case it should, notwithstanding repeated

exhortation, effectuate its mandate in an unacceptable manner,

taking into account all circumstances. In such a case the juris

diction of the ordinary courts shall revive, unless the parties had agreed otherwise.

Article 1032

1. Neither the arbitration agreement nor the mandate of the tri

bunal shall come to an end by the decease of a party, unless the

parties had agreed otherwise.

2. The arbitral tribunal shall suspend the proceedings for a

period to be determined by it. The arbitral tribunal may, at the

request of the legal successors to a deceased party, extend such

period. The arbitral tribunal shall give the other party the



928

opportunity to be heard with respect to the request.

3. After the suspension the proceedings shall be resumed in the

position which they had, unless the parties had agreed otherwise.

Article 1033

1. An arbitrator may be challenged if there is justified doubt as

to his impartiality or independence. For the same reasons a

secretary of the arbitral tribunal may be challenged. Article 1035

shall apply "mutatis mutandis1' in that case.

2. An arbitrator appointed by one of the parties may be challenged

by such party only for reasons of which it became aware after the

appointment.

3. A party may not challenge an arbitrator appointed by a third

party or the president of the district court if it has acquiesced

in his appointment, unless the reason for such challenge became

known to it at a later date only.

Article 1034

1. A person invited to act as arbitrator or secretary who surmises

that he may be challenged shall inform in writing the person from

which emanated the invitation, setting out the possible grounds

for challenge.

2. A person appointed as arbitrator or secretary shall send to the

parties the information referred to in the first paragraph as soon

as his appointment shall have taken place, unless the latter

should already have received such information.

Article 1035

1. The challenging party shall communicate the challenge in wri

ting, setting out the reasons, to the relevant arbitrator, the

arbitral tribunal, and - as the case may be - the third party

which had appointed the challenged arbitrator. The proceedings

may be suspended by the arbitral tribunal as from the day of

receipt of the communication.

2. In case a challenged arbitrator should not have withdrawn

within two weeks as from the day of the receipt of such communi

cation, the president of the district court, at the request of the

appropriate party, shall decide as to whether the challenge is or



929

is not well founded. Should such a request not have been filed

within four weeks as from the date of receipt of the communi

cation, the right of challenging shall c?me to an end and the

proceedings, if suspended, shall be resuiried in the position which

they have.

3. In case the challenged arbitrator should withdraw or his

challenge be judged well-founded by the president of the district

court, he shall be replaced according to the rules which applied

to his original appointment, unless the parties had agreed on an

other manner of replacement. Article 1030 paragraphs 2 and 3 shall

apply "mutatis mutandis".

4. If the relevant arbitrator or the or both of the parties should

have domicile ?r residence out of the Netherlands, the periods set

out in paragraph 2 shall be six or eight weeks, respectively.

Chapter 2 - The arbitration proceedings.

Article 1036

Without prejudice to the provisions of Articles 1020 to 1073 the

arbitral proceedings shall take place in the manner as agreed upon

by the parties, or to the extent that the parties shall not have

so agreed, by the arbitral tribunal.

Article 1Q37 1. The place of arbitration shall be agreed upon by the parties

and, failing such agreement, by the arbitral tribunal. The

determination of the place of arbitration shall entail the

determination of the place of rendering of the award.

2. If the place of arbitration shall have been determined neither

by the parties nor by the arbitral tribunal, the place of

rendering of the award, mentioned by the arbitral tribunal in the

award, shall be considered as the place of arbitration.

3. The arbitral tribunal may have its meetings, consultations

among its members and hearings for the purpose of depositions of

witnesses and experts at any other place, in or outside of the

Netherlands, as it shall deem appropriate for the purpose.



930

Article 1038

1. The parties may appear in person before the arbitral tribunal

or may be represented by an advocate or a person with a specific written power of attorney to that effect.

2. The parties may be assisted in the proceedings by persons of

their choice.

Article 1039

1. The parties shall be treated with equality. The arbitral

tribunal shall give each p^rty the opportunity to assert its

rights and to present its case.

2. Either at the request of one of the parties or on its own

initiative, the arbitral tribunal shall give the parties the

opportunity to present their case orally. 3. At the request of one of the parties the arbitral tribunal may

give a party the opportunity to bring witnesses or experts. The

arbitral tribunal may appoint one of its members for the purpose of hearing witnesses or experts.

4. The arbitral tribunal may order the production of documents.

5. In so far as the parties did not agree otherwise the arbitral

tribunal shall be free with respect to the application of the

rules of evidence.

Article 1040

1. In case plaintiff, though given proper opportunity, fails to

submit his claim or to give proper elucidation thereof, without

invoking proper reasons, the arbitral tribunal may in an award

terminate the arbitral proceedings.

2. In case defendant, though giv?n proper opportunity, fails to

defend himself, without invoking proper reasons, the arbitral

tribunal may immediately render its award.

3. In the award referred to in paragraphs the claim shall be

awarded, unless it should appear illegal or unfounded. Before

rendering its award the arbitral tribunal may require proof from

the plaintiff of one or more of his allegations.

Article 1041

1. If a hearing of witnesses takes place, the arbitral tribunal

shall determine time and place of the hearing and the way in which



931

the hearing shall take place. If deemed necessary by the arbitral

tribunal it shall hear the witnesses after they have sworn or

promised, as referred to in Article 107 paragraph 1.

2. If a witness should not appear of his own free will or, if

appearing, should refuse to make a statement, the arbitral tri

bunal may allow the party so requesting to address, within the

time to be fixed by the arbitral tribunal, the president of the

district court with a request for the appointing of a member of

the court before whom the hearing of witnesses shall take place* The examination shall take place in the same manner as in ordinary

matters, on the understanding that the arbitrator or arbitrators

will be given the opportunity by the secretary of the court to be

present at the examination.

3. The secretary of the court shall send as soon as possible a

copy of the minutes of the examination to the arbitral tribunal

and to the parties.

4. The arbitral tribunal may suspend the proceedings until the day on which the arbitrators will have received the minutes of the

examination.

Article 1042

1. The arbitral tribunal may appoint one or more experts for the

purpose of rendering an opinion. The arbitral tribunal shall as

soon as possible send to the parties a copy ?f the appointment and

of the instruction given to the experts. 2. The arbitral tribunal may require a party to provide the

experts with the necessary information and cooperation. 3. After receipt of the experts1 opinion the arbitral tribunal

shall send a copy thereof to the parties as soon as possible. 4. At the request of one of the parties the experts shall be

heard in a session of the arbitral tribunal. If a party should

wish to make such a request, it shall inform the arbitral tribunal

and the other party as soon as possible. 5. The arbitral tribunal shall give the parties the opportunity to

put questions to the experts and to bring experts themselves.

6. Article 1041 paragraph 1 shall apply "mutatis mutandis".



932

Article 1043

In any state of the proceedings the arbitral tribunal may order

the personal appearance of the parties with a view to provide information or to try and reach a settlement.

Article 1044

1. Through the intermediary of the president of the district court

in The Hague a request may be brought by the arbitral tribunal for

information as referred to in Article 3 of the European Agreement

concluded in London on June 7, 1968 and relating to the obtaining of information with respect to foreign law ("Tractatenblad" 1968,

142). The president shall, as soon as possible/ unless he should

deem the request to be useless, send the request to the organ referred to in Article 2 of the Agreement and shall inform the

arbitral tribunal accordingly.

2. The arbitral tribunal may suspend the proceedings until the day

on which the arbitral tribunal shall have received the reply to

the request for information.

Article 1045

1. At the written request of a third party which has an interest

in an arbitration, the arbitral tribunal may allow it to join in

the proceedings or to intervene. The arbitral tribunal shall as

soon as possible send a copy of the request to the parties. 2. A party may call a third party in guarantee. A copy of the

relevant document shall be sent as soon as possible to the arbi

tral tribunal and to the other party.

3. The joinder, intervention or guarantee proceedings may only be

allowed by the arbitral tribunal, after having heard the parties,

if the third party by an agreement in writing with the parties

adhered to the arbitration agreement.

4. If joinder, intervention or guarantee proceedings are allowed

the third party becomes a party to the arbitral proceedings. The

arbitral tribunal shall determine the further course of the pro

ceedings unless the parties have provided for it in their agree

ment.



933

Article 1046

1. If before an arbitral tribunal - in the Netherlands an arbi

tration is pending the subject of which is connected with an

arbitration pending before another arbitral tribunal in the

Netherlands, the most appropriate party may request the president

of the district court to order the joinder of the arbitrations,

unless the parties had agreed otherwise.

2. The president may, after having given all parties and the

arbitrators the opportunity to express their opinion, grant the

request wholly or in part, or reject it. His decision shall

as soon as possible be communicated to all parties and to the

arbitral tribunals concerned.

3. In case the president should order complete joinder, the par

ties shall in concert appoint the arbitrator or arbitrators, in

uneven numbers, and they shall determine the rules which shall

apply to the joint proceedings. If the parties are unable to reach

agreement thereon within the time to be fixed by the president, the president shall, at the request of th? appropriate party,

appoint the arbitrator or arbitrators and, if necessary, determine

which rules shall apply to the joint proceedings. The president

shall determine the remuneration of the arbitrator or arbitrators

who, as a consequence of the complete joinder of the proceedings,

shall be relieved from their mandate.

4. In case the president should order partial joinder, he shall

decide which disputes shall be comprised by it. At the request of

the appropriate party, the president shall appoint the arbitrator

or arbitrators and shall determine the rules which shall apply to

the joint proceedings if the parties are unable to reach agreement

thereon within the time to be fixed by the president. In that case

the arbitral tribunals before which the disputes connected with

the partial joinder were pending shall suspend the proceedings.

The award rendered by the arbitral tribunal appointed for the

joint cases shall be sent by such tribunal to the other arbitral

tribunals. Upon receipt of that award these arbitral tribunals

shall resume the matters pending before them and render their

award with due observance of the award rendered in the joint

proceedings.



934

5. In the cases referred to in paragraphs 3 and 4 hereof Article

1027 paragraph 4 shall apply "mutatis mutandis".

6. Arbitral appeal shall lie from an award rendered under appli

cation of paragraph 3 or 4 hereof if and to the extent that all

parties involved in the joint proceedings shall have provided

accordingly in an agreement.

Article 1047

In the case of an arbitration relating to matters referred to in

Article 1020 paragraph 4 littera af the provisions of this chapter

shall not be applicable, with the exception of Article 1037. The

arbitration proceedings shall in that case take place in the

manner as shall be agreed upon by the parties or, to the extent

that the parties shall have failed to so provide, by the arbitral

tribunal.

Article 1048

The arbitral tribunal shall determine the date on which the award

shall be rendered.

Chapter 3 - The arbitral award.

Article 1049

The arbitral tribunal may render a full or partial final award or

an interim award.

Article 1050

1. Arbitral appeal from an arbitral award shall only lie if the

parties did so provide in their agreement.

2. Arbitral appeal from a partial final award may only be insti

tuted together with the appeal from the last final award, unless

the parties agreed otherwise.

3. Arbitral appeal from an interim award may only be instituted

together with the appeal from a full or partial final award,

unless the parties agreed otherwise.

4. The time limit for instituting arbitral appeal shall be three

months as from the date of deposit of the award at the secre

tariate of the court, unless the parties agreed otherwise.



935

Article 1051

1. The parties may in their agreement give the arbitral tribunal

or the president thereof the power to render injunction orders,

within the limits foreseen by Article 289, paragraph 1.

2. If, notwithstanding such an agreement, the matter is brought

before the president ? seil., of the district court, J.C.S.J, the

latter may, if a party invokes the existence of that agreement,

taking into account all circumstances, declare-himself to be

without jurisdiction by referring the matter to the arbitral

injunction proceedings as agreed, unless the agreement is invalid.

3. A decision, rendered in arbitral injunction proceedings, shall

be considered an arbitral award; the provisions of chapters 3 to 5

inclusive of this Title shall apply.

4. In case of a referral to arbitral injunction proceedings as

referred to in paragraph 2 hereof, no appeal shall lie from the

decision of the president of the district court.

Article 1052

1. The arbitral tribunal may rule on its own jurisdiction.

2. A party which appeared in the arbitration shall/ prior to all

other defences, raise the plea of lack of jurisdiction of the

arbitral tribunal on the ground that there is no valid agreement

to arbitrate, failing which it shall lose its right to invoke such

lack later in the arbitration proceedings or in a state court,

unless it should do so on the ground that the dispute is not

arbitrable under Article 1020, paragraph 3.

3. A party which participated in the composition of the arbitral

tribunal cannot invoke in the arbitration or in a state court the

lack of jurisdiction of the arbitral tribunal on the ground

that the arbitral tribunal had been composed without due obser

vance of the rules applicable thereto. A party which appeared in

the arbitration and which did not cooperate in the composition of

the arbitral tribunal shall, prior to all other defenses, invoke

the absence of jurisdiction of the arbitral tribunal on the

ground that the arbitral tribunal had been composed without due

observance of the rules applicable thereto, failing which it shall

lose its right to invoke such absence later in the arbitration or

in a state court.



936

4. The decision by which the arbitral tribunal declares itself to

have jurisdiction may be attacked by the means of recourse

mentioned in Article 1064 paragraph 1, but only simultaneously

with the ensuing full or partial final award.

5. If the arbitral tribunal should declare itself to be without

jurisdiction, the state courts shall be empowered to take

cognizance of the matter, unless the parties agreed otherwise.

6. Both in case the arbitral tribunal should declare itself to

have jurisdiction and in case it should declare itself to be

without jurisdiction, arbitral appeal shall lie, if so agreed. The

ordinary courts shall then only have jurisdiction by virtue of

paragraph 4 or paragraph 5 of this article as from the time an

arbitral appeal shall have been rendered or the time limit for

instituting such appeal should have lapsed without an appeal being

instituted or earlier if appeal has been waived in writing.

Article 1053

The arbitration agreement shall be considered and judged upon as a

separate agreement. The arbitral tribunal shall be empowered to

judge upon the legal validity of the main agreement of which th?

arbitration agreement forms part or to which it relates.

Article 1054

1. The arbitral tribunal shall decide according to the rules of

law.

2. In case the parties have made a choice of law the arbitral

tribunal shall decide according to the rules of law indicated by

the parties. If there is no such choice of law, the arbitral

tribunal shall decide according to the rules of law which it shall

deem appropriate.

3. The arbitral tribunal shall decide as "goede mannen naar

billijkheid" if the parties have instructed them in that sense in

their agreement.

4. In all cases the arbitral tribunal shall take into account the

applicable usages of the trade.

Article 1055

In case an arbitral appeal should lie from the award, th? arbitral



937

tribunal may declare its award immediately enforceable in the

cases in which the ordinary courts would have power to do so. The

arbitral tribunal may order that a guarantee should be put up

prior to the enforcement of the arbitral award.

Article 1056

In the cases in which the ordinary courts may order an

"astreinte11, an arbitral tribunal shall have the same power. The

Articles 611a to 611i inclusive shall apply "mutatis mutandis11,

provided that in the cases referred to in Article 611d the lif

ting, suspension or decrease of the "astreinte" shall b? requested

by application to the president of the district court at the

secretariate of which the original of the award shall have been

deposited by application of Article 1058 paragraph 1.

Article 1057

1. If the arbitral tribunal is composed of more than one arbi

trator, it shall decide by majority of votes, unless the parties

agreed otherwise.

2. The award shall be ?ade in writing and shall fee signed by the

arbitrator or arbitrators.

3. If a minority of the arbitrators should refuse to sign, the

other arbitrators shall mention this under the award signed by

them. This mention shall be signed by them. A similar mention

shall be made if a minority should be unable to sign a?d it

cannot be anticipated that the impediment shall cease to exist

within a short period of time.

4. The award shall, apart from the decision, in any case contain:

a. the name and domicile of the arbitrator or arbitrators

b. the name and domicile of the parties c. the date of the award

d. the place of the award

e. the reasons on which the decision given in the award is

based, unless the award should only deal with the sole determi

nation of the quality or the condition of goods, as referred to in

Article 1020, paragraph 4 littera a, or the recording of a settle

ment as referred to in Article 1069.



938 Article 1058

1. The arbitral tribunal sees to it that as soon as possible:

a. each award in a copy signed by an arbitrator or by the secre

tary of the arbitral tribunal, shall be sent to the parties;

b. the original copy of a full or partial final award shall be

deposited with the registry of the district court within the

territory of which the place of arbitration is situated.

2. The mandate of the arbitral tribunal shall come to an end by

the depositing of the last final award with the registry of

the court without prejudice to the provisions of Articles 1060 and

1061.

Article 1059

1. Only a full or partial final award can obtain "res judicata"

effect. It shall have such effect as from the date on which it is

rendered.

2. If, however, arbitral appeal has been agreed upon, a full or

partial final award rendered in first instance shall obtain "res

iudicata" effect as from the day on which the time fixed for such

appeal has lapsed unused or as from the day on which the appeal

award has been rendered, if an to the extent the award in first

instance shall have been confirmed in appeal.

Article 1060

1. Within thirty days as from the day of deposit of the award at

the secretariate of the court, a party may request the arbitral

tribunal in writing to rectify an apparent calculation or clerical

error in the award.

2. If the data mentioned in Article 1057 paragraph 4 litterae a to

d inclusive have been set out incorrectly or are wholly or par

tially omitted from the award, a party may, within thirty days as

from the day of deposit of the award at the secretariate of the

court, request the arbitral tribunal in writing to amend such

data.

3. A copy of the request as referred to in paragraphs 1 and 2

hereof shall be sent to the other party by the arbitral tribunal.

4. The arbitral tribunal may also, within thirty days as from the

day of deposit of the award at the secretariate of the court, at



939

its own initiative bring about the rectification referred to in

paragraph 1 hereof or the amendment referred to in paragraph 2

hereof.

5. If the arbitral tribunal proceeds to the rectification or

amendment, it shall be apposed by the arbitral tribunal to the

original copy and the other copies of the award and signed, or set

out in a separate document signed by the arbitral tribunal, which

document shall be deemed to be part of the award. The Articles

1057, paragraphs 1,2 and 3 and Article 1058, paragraph 1 shall

apply "mutatis mutandis'".

6. In case the arbitral tribunal should reject the request for

ratification or amendment, it shall inform the parties in writing

accordingly.

7. The request referred to in this Article does not suspend the

possibility of enforcement or annulment, unless the president of

the district court is of the opinion that there are important reasons to so suspend.

Article 1061

1. In case the arbitral tribunal should have failed to adjudicate

with respect to one or more matters which were submitted to its

judgment, the most appropriate party may, within thirty days as

from the date of deposit of the award at the secretariate of

the court, request the arbitral tribunal to render a supplementary award.

2. A copy of the request shall be sent to the other party by the

arbitral tribunal.

3. Before deciding upon the request the arbitral tribunal shall

give the parties an opportunity to be heard.

4. A supplementary award shall be considered as an arbitral award; the provision of the third, fourth and fifth Chapter of this Title

shall apply to it.

5. In case the arbitral tribunal should reject the request for the

issue of a supplementary award, it shall inform the parties in

writing accordingly. A copy of the relevant communication, signed

by an arbitrator or the secretary of the arbitral tribunal, shall

be deposited with the secretariate of the district court in con

formity to the provisions of Article 1058 paragraph 1.



940

6. In case arbitral appeal has been agreed upon, the arbitral

award rendered in first instance can only be supplemented in

appeal. A request to that effect should be filed within the time

fixed for the appeal.

Chapter 4 - The enforcement of the arbitral award.

Article 1062 1. The enforcement in the Netherlands of a full or partial final

award which is not subject to an arbitral appeal or which has been

declared enforceable notwithstanding appeal, or of a full or

partial final award rendered in appeal can only take place upon

the president of the district court at the secretariate of which

the original copy of the award shall have been deposited according

to Article 1058, paragraph 1, granting leave thereto upon request

of one of the parties

2. The leave shall be registered on the original copy of the award

or, if no deposit has taken place, be laid down in an order. The

secretary of the court shall as soon as possible send a certified

copy of the order granting leave for enforcement.

3. If arbitral appeal lies, the leave for enforcement of an arbi

tral award rendered in first instance which has not been declared

immediately enforceable may only be granted after the time fixed

for the arbitral appeal lapsed unused or, whichever the earlier,

appeal has been waived in writing.

4. If the president of the district court grants leave for enforce

ment, the party (not having requested the permission)

may only use the means of recourse mentioned in Article 1064

paragraph 1. Setting aside or reversal after "request civiel" of

the arbitral award entails ipso facto that of the leave for enforce

ment .

Article 1063

1. The President of the district court may only refuse leave for

enforcement if the award or the manner in which it came into being

is manifestly contrary to public policy or "bonos mores", or if in

defiance of Article 1055 immediate enforceability has been ordered

or if in defiance of Article 1056 an "astreinte" has been



941

ordered. In the latter case the refusal shall only relate to the

enforcement of the "astreinte".

2. The secretary of the court shall as soon as possible sencl to

the parties a certified copy of the order refusing leave.

3. The applicant may within two months as from the date of the

decision lodge an appeal with the Court of Appeal from the refusal

to grant leave to enforce.

4. If leave to enforce should also not be granted in appeal,

"cassatie" shall lie during two months as from the day of the

decision in appeal.

5. If in appeal or after "cassatie" leave toehforfe? should be

granted, the provisions of Article 1062 paragraph 4 shall apply

"mutatis mutandis".

Chapter 5 -

The annulment of the arbitral award and the "request civiel".

Article 1064

1. The only means of recourse which are available against a

full or partial final arbitral award which is not liable to be

appealed, or against a full or partial final award, rendered in

appeal, are those of setting asideand "request civiel" as set

out in this chapter.

2. The action for setting aside shall be brought before the

district court at the secretariate of which the original copy of

the award shall have been deposited according to Article 1058,

paragraph 1.

3. A party may bring the action for setting aside as soon as the

award shall have become final. The power to do so shall expire

three months after the day of depositing of the award at the

secretariate of the district court. If, however, the award with

leave for enforcement shall have been notified to the other party,

the latter may, notwithstanding the expiration of the three

months1 period mentioned in the preceeding sentence, bring an

action for setting aside within three months as from such

notification.

1) "Setting aside" and "annulment" are here taken as synonymous.



942

4. An action for setting aside may, with respect to an arbitral

interim award, only be brought together with an action for setting aside of the full or partial final award.

5. All grounds for setting aside should be expressed in the writ,

failing which they shall be forfeited.

Article 1065

1. Setting aside can only take place on one or more of the

following grounds: a. that no valid agreement to arbitrate exists

b. that the arbitral tribunal was composed contrary to the

rules applicable thereto

c. that the arbitral tribunal did not adhere to its mandate

d. that the award has not been signed in accordance with the

provisions of Article 1057 or does not contain reasons

e. that the award, or the manner in which it came into

being, is contrary to public policy or "bonos mores".

2. The ground, mentioned under a of the first paragraph, cannot

give rise to setting aside in the case mentioned in Article 1052,

paragraph 2.

3. The ground, mentioned under b of the first paragraph, cannot

give rise to setting aside in the case mentioned in Article 1052,

paragraph 3.

4. The ground, mentioned under c of the first paragraph, cannot

give rise to setting aside if the party which invokes it partici

pated in the arbitration without raising the relevant plea, al

though it knew that the arbitral tribunal did not adhere to its

mandate.

5. Where the arbitral tribunal awarded more than or something different from what had been claimed, the award shall be partially set aside to the extent that what has been so awarded can be

separated from the remainder of the award.

6. If and to the extent the arbitral tribunal failed to adjudicate

with respect to one or more matters which were submitted to its

judgment, the claim for setting aside on the ground referred to in

the paragraph 1 under c can only be brought if a supplementary

award as referred to in Article 1061 paragraph 1 shall have been

rendered or a request for supplementing referred to in Article 1061



943

first paragraph shall have been wholly or partially dismissed.

7. In derogation from the provisions of Article 1064, paragraph 3,

second sentence, the period for bringing of the claim for

setting aside referred to in the preceding paragraph shall expire

within three months as from the depositing at the secretariate of

the court of the supplementary award or of the copy of the

communication of the dismissal referred to in Article 1061, para

graph 5.

Article 1066

1. The claim for setting aside does not suspend the enforcement of

the award.

2. However, the court adjudicating on the setting aside may, if

there are grounds, at the request of the most appropriate party,

suspend the enforcement until a final decision shall have been

rendered with respect to the claim for setting aside.

3. A copy of the request for suspension shall as soon as possible

be sent to the other party by the secretary of the court.

4. The court shall only decide on the request after having given

to the other party the opportunity to address the court thereon.

5. If the request is granted, the court may order that the

requestrant shall put up security. In case of dismissal the court

may order that the other party shall put up security.

6. In case of suspension of the enforcement the most appropriate

party may require the court to terminate the suspension. The third

to fifth paragraphs shall apply "mutatis mutandis".

Article 1067

As soon as the judgment setting aside an award shall have become

final, the jurisdiction of the state courts shall revive, unless

the parties agreed otherwise.

Article 1068

1. Revocation after "request civiel" can only take place on one or

more of the following grounds: a. the award is wholly or partially based on fraud discovered

after the rendering of the award and perpetrated by or with know

ledge of the other party in the arbitral proceedings.



944

b. the award is wholly or partially based on documents which after

the rendering of the award were proved to be false.

c. a party after the rendering of the award obtained possession of

documents which would have influenced the decision of the arbitral

tribunal and had been withheld by or through the intermediary of

the other party.

2. The "request civiel" shall be brought before the Court of

Appeal which would have had jurisdiction with respect to the

action for annulment referred to in Article 1064, and this within

three months as from the date on which the fraud or falsehood has

become known or a party obtained the new documents. The Articles

1066 and 1067 shall apply "mutatis mutandis".

3. Without prejudice to the provisions of the aforegoing para

graphs, the Articles of the Tenth Title of Book 1 shall apply

"mutatis mutandis".

Chapter 6 -

The arbitral award containing a settlement between the parties.

Article 1069

1. If in the course of an arbitration the parties agree to a

settlement, they may jointly request the arbitral tribunal to

record the contents thereof in an award. The arbitral tribunal may

refuse without stating reasons.

2. The award recording a settlement between the parties shall be

considered as an award to which the provisions of Articles 1049 to

1068 inclusive shall be applicable, except that

a. the award may only be set aside on the ground that it is

contrary to public policy or "bonos mores"

b. the award, in derogation from Article 1057, does not have

to give reasons, and

c. the award shall be co-signed by the parties.

Chapter 7 - Final dispositions

Article 1070

No appeal shall lie from the orders of the president of the

district court referred to in the first, second and third Chapters

of the Title.



945

Article 1071

In the cases referred to in Article 1026, paragraphs 2 and 4,

Article 1027, paragraph 3, Article 1028, Article 1044 paragraph 1

and Article 1062 paragraph 2, no assistance by a "procureur" shall

be required for the application and, in so far as applicable, the

reply.

Article 1072 The parties may in an agreement designate the president of a

particular district court as competent president with respect to

matters referred to in Articles 1026, paragraphs 2 and 4, Article

1027 paragraph3, Articles 1028, Article 1029 paragraphs 2 and 4,

Article 1031 paragraph 2, Article 1035 paragraph 2 and Article

1041 paragraph 2.

Article 1073

1. The provisions of Articles 1020 to 1072 inclusive shall apply

whenever the place of arbitration shall be situated in the Nether

lands.

2. In case the parties did not determine the place of arbitration,

the appointing or challenging of the arbitrator or arbitrators

(or the secretary of the Tribunal) may take place with application of the facilities provided for in the first chapter of this Title

as soon as at least one of the parties is domiciled or has

residence in the Netherlands.

SECOND TITLE - Arbitration outside of the Netherlands:

Article 1074

1. The court in the Netherlands before which a dispute is brought in respect of which an arbitration agreement has been made from

which it follows that arbitration shall take place outside of the

Netherlands shall declare that it has no jurisdiction if a party,

prior to all other defences, invokes the existence of such agree

ment, unless the agreement is invalid under the law applicable to

that agreement.

2. The agreement referred to in the first paragraph hereof, does

not prevent a party from bringing before the Dutch courts a



946

request for a conservatory measure or applying to the president of

the district court for an injunction order in accordance with

Article 289.

Article 1075

An award rendered in a foreign state to which a treaty for recog

nition and enforcement is applicable, may be recognized and en

forced in the Netherlands. Articles 985 to 991 inclusive shall

apply "mutatis mutandis" in so far as the treaty shall not contain

derogating provisions and except that the president of the dis

trict court shall be substituted for the district court and the

period for appeal and "cassation" shall be two months.

Article 1076

1. If no treaty for recognition and enforcement applies or if an

applicable treaty permits to invoke the law of the country where

recognition or enforcement is sought, an award rendered in a

foreign state may be recognized in the Netherlands and the

enforcement thereof may be requested in the Netherlands, upon

production of the original or of a certified copy of the agreement

to arbitrate and the award, unless:

A. the party against which recognition and enforcement is sought,

submits and proves that:

a. no valid agreement to arbitrate exists under the law

applicable to that agreement

b. the arbitral tribunal was composed contrary to the rules

applicable thereto

c. the arbitral tribunal did not adhere to its mandate

d. the award may form the subject of appeal with arbitrators

or the court in the country where it was rendered,[or J.C.S.U

e. the award has been set aside by a competent authority of

the country where it was rendered

B. the court holds that recognition or enforcement would be

contrary to public policy.

2. The ground mentioned under Aa of paragraph 1 hereof vili not

give rise to refusal of recognition or enforcement if the party

which invokes it, appeared in the arbitration and omitted to raise

prior to all other defences the plea of absence of jurisdiction of



947

the arbitral tribunal on the ground that there was no valid agree

ment to arbitrate.

3. The ground mentioned under Ab of paragraph 1 hereof will not

give rise to refusal of recognition or enforcement if the party

which invokes it, cooperated in the composition of the tribunal or

if the party which did not cooperate in the composition of the

tribunal appeared in the arbitration and failed to raise prior to

all defences the plea of absence of jurisdiction of the arbitral

tribunal on the ground that the arbitral tribunal was composed

contrary to the rules applicable thereto.

4. Th? ground mentioned under Ac Csell., of paragraph 1 hereof,

J.C.S.Jwill not give rise to refusal of recognition or enforce*

ment if the party which invokes it participated in the arbitration

without raising a relevant plea although it knew that the arbitral

tribunal did not adhere to its mandate.

5. If there should have been awarded in excess of or in deviation

from that which was claimed, the award may be partially recognized or enforced to the extent that what has been so awarded in excess

or in deviation can be separated from the remainder of the award.

6. Articles 985 to 991 inclusive shall apply "mutatis mutandis"

except that the president of the district court shall be sub

stituted for the district court, that the period for appeal and

"cassation" shall be two months and that no documents need to be

produced showing that the award is enforceable in the country where it was rendered.

7. If the setting aside of an award rendered in a foreign state is

sought from the competent authority of the country where the award

was rendered Article 1066, paragraphs 2 to 6 inclusive, shall

apply "mutatis mutandis" if recognition or enforcement is applied for in the Netherlands.

Transitory provisions1*

Article II

1. Articles 620 to 657 of the Code of Civil Procedure are hereby repealed, without prejudice to the provisions of Article III of

1) Article I of the Act of July 2, 1986 contains the text of

Articles 1020 to 1076, above.



948

this Act.

2. This Act shall apply to arbitrations which are pending on the

date on which this Act shall come into force, without prejudice to

the provisions of Article III of this Act.

Article III

1. This Act shall not apply to matters which at the date on which

this Act shall come into force, are pending with a state court as

a result of the issuing of an introductory writ or by the filing

of an introductory application. To these matters Articles 620 to

657 of the Code of Civil Procedure, as in force prior to the date

on which this Act shall come into force, shall apply.

Article IV

On the day on which this Act shall come into force, also the

Articles 429 a to 429 r inclusive of the Code of Civil Procedure

shall come into force with respect to matters which under the

provisions of this Act must be introduced by request, and Article

345 of that Code shall be repealed.

Article V

1. Article 29, paragraph 3, of the Code of Civil Procedure is

repealed.

2. In Article 993 paragraph 1 of the Code of Civil Procedure the

words "rendered arbitral award or there" are repealed.

Article VI

This Act shall enter into force on the first day of the fifth

calendar month which follows that in the course of which the Act

shall be published in the Official Journal.



Documents

NETHERLANDS: NEW STATUTE ON ARBITRATION