NETHERLANDS Law and Practice Contributed by: Yvette Borrius, Christine Vreede, Tiffany Zandbergen and Daphne Beunk, Florent B.V.
11.3 Interest Awarded on Costs Statutory interest on costs should be explicitly claimed by the other party. Statutory interest is calculated as a compound interest from the day the party is in default. The interest rate is determined by the Minister of Jus- tice. 12. Alternative Dispute Resolution (ADR) 12.1 Views of ADR Within the Country There is an increased interest among litigants for alternative dispute resolution (ADR), primarily in the form of arbitration, but also mediation and adjudi- cation (expert determination or binding advice). The main reasons for this increased interest are efficiency, expertise and confidentiality. Compared to the gov- ernmental judicial system, the parties have more influence on the structure and processing time of the dispute resolution, the language and the applicable law, and the appointment of expert arbiters or advis- ers charged with giving a binding opinion. The hear- ings and the findings or awards are, in principle, not public. Arbitration institutes and expert arbitrators in the Netherlands are frequently used, both nationally and internationally. The process of mediation, whereby the parties attempt to resolve a conflict assisted by a mediator who acts as an independent process manager, is beginning to gain traction as a form of ADR. Not all business disputes are suitable for mediation. The Mediation Directive (European Directive 2008/52/EC), implemented in the Netherlands in 2012, inter alia entails that enforcement is facilitated, limitation periods can be interrupted with mediation and mediators are granted a legal privilege. The implementation act only applies to cross-border cases, for the time being. 12.2 ADR Within the Legal System As a general rule, the state court will not hear the case if the parties have agreed on arbitration. This does not apply when mediation has been agreed; mediation takes place on a voluntary basis. The Supreme Court clarified that mediation clauses in commercial con- tracts are either non-binding or obligatory, depending on the wording and the parties’ reasonable expecta-
tions. Moreover, mediation clauses should not unrea- sonably impair a party’s access to the courts or arbi- tration, as protected by Section 6 ECHR. Depending on the matter, judges tend to encourage mediation and may ask the parties whether they agree to refer a pending case to mediation. There is no sanc- tion for refusing such a mediation. 12.3 ADR Institutions Most arbitration cases are administered and facilitated by well-organised arbitration institutes, such as the Netherlands Arbitration Institute (NAI), one of the spe- cialised arbitration institutes or those aimed at certain market segments such as the Arbitration board for the building industry (RvA), the metal industry and trade, transport and maritime cases (UNUM), for complex financial disputes (PRIME Finance), and for technol- ogy disputes (TAMI). These institutes apply regulations and generally advocate contract clauses to be used by the parties. The aforementioned institutions often facilitate bind- ing advice proceedings. In addition, there are regis- ters of advisers charged with giving binding opinions with a specific background and expertise such as, for example, the Register Valuators (affiliated with NiVR). The NAI can further be requested by the parties to administer and facilitate mediation proceedings. In the area of business mediation, two associations have been established to promote the use of mediation for the settlement of business and commercial disputes. In business dispute resolution, accredited (certified) mediators are used, such as mediators registered with the Mediators Federation Netherlands, who meet cer- tain training requirements.
13. Arbitration 13.1 Laws Regarding the Conduct of Arbitration
Every arbitration with its place of arbitration in the Netherlands is subject to the Dutch Arbitration Act (DAA), which is laid down in Sections 1020–1077, DCCP. The DAA contains mandatory and non-man- datory provisions.
786 CHAMBERS.COM
Powered by FlippingBook