NETHERLANDS Law and Practice Contributed by: Yvette Borrius, Christine Vreede, Tiffany Zandbergen and Daphne Beunk, Florent B.V.
13.2 Subject Matters Not Referred to Arbitration Pursuant to Section 1020 (3) of the DCCP, the arbi- tration agreement may not serve to determine legal consequences that cannot be freely determined by the parties. Matters of public policy, and other matters reserved by law to the civil courts, cannot be referred to arbitration, including aspects of family law (divorce or adoption), intellectual property law, criminal law, insolvency law and corporate law (eg, the status of a limited liability company, right of investigation, liquida- tion proceedings or the validity of corporate decision- making). 13.3 Circumstances to Challenge an Arbitral Award Arbitral awards may be set aside ( vernietigen ) or revoked ( herroepen ) by the court of appeal (Sections 1064a(1) and 1068, DCCP). Revocation An award can be revoked in specific cases of fraud, if the award is based on forged documents or if docu- ments that would have had an influence on the deci- sion were withheld by the other party (Section 1068, DCCP). A request for revocation must be filed within three months after the date the ground for revocation was discovered. Setting Aside There are five grounds for setting aside an arbitral award (Section 1065, DCCP): • absence of a valid arbitration agreement; • the tribunal was composed in violation of the appli- cable rules; • breach of mandate by the arbitral tribunal; • lack of signature and/or reasoning; and • the award, or the manner in which it was made, violates public policy. A request for setting aside an award must be filed within three months of the date the arbitral award was sent to the parties (first period) or within three months after the arbitral award was served to the party against whom judgment had been given (second period). If the
parties agreed to deposit the award, the request to set an award aside must be filed within three months after the deposit at the district court. After the expiration of this three-month period, an award can still be set aside if it contravenes public order. The court of appeal may, at the request of a party or of its own motion, suspend setting aside proceedings, to put the arbitral tribunal in a position to reverse the ground for setting aside (Section 1065a, DCC). 13.4 Procedure for Enforcing Domestic and Foreign Arbitration Domestic arbitral awards require leave for enforce- ment (exequatur) from the provisional relief judge of the competent district court before they can be enforced (Section 1062, DCCP). An exequatur is granted upon a request by one of the parties. Enforcement of an arbitral award may only be refused if, after summary investigation, it seems likely that the award will be set aside or revoked, or if the enforce- ment concerns a penalty for non-compliance which has been imposed contrary to Section 1056 of the DCCP (Section 1063, DCCP). The possibility to appeal is asymmetric; it is possible to appeal against a refusal of leave for enforcement, but it is not possible to appeal a decision granting leave for enforcement (Sections 1063 (4) and (5), DCCP). Recognition and Enforcement of Foreign Arbitral Awards Foreign arbitral awards may be recognised and enforced in the Netherlands upon the request of a party on the basis of a convention (Section 1075, DCCP) or Dutch law (Section 1076, DCCP). Requests for an exequatur with regard to foreign arbitral awards are submitted to the court of appeal. Treaty Based If a convention or treaty for the recognition and enforcement of the arbitral award applies, leave for enforcement of a foreign arbitral award may be requested with the court of appeal on the basis of Section 1075 of the DCCP. The exequatur proceed- ings laid down in Sections 985–991 of the DCCP
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