NETHERLANDS Law and Practice Contributed by: Yvette Borrius, Emille Buziau, Marit Balkema and Daphne Beunk, Florent B.V.
contracts are either non-binding or obligatory, depending on the wording and the parties’ reasonable expectations. Moreover, mediation clauses should not unreasonably impair a party’s access to the courts or arbitration, as protected by Section 6 ECHR. Depending on the matter, judges tend to encour- age mediation and may ask the parties whether they agree to refer a pending case to mediation. There is no sanction for refusing such a media- tion. 12.3 ADR Institutions Most arbitration cases are administered and facilitated by well-organised arbitration insti- tutes, such as the Netherlands Arbitration Institute (NAI), one of the specialised arbitra- tion 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 technology disputes (TAMI). These insti- tutes apply regulations and generally advocate contract clauses to be used by the parties. The aforementioned institutions often facilitate binding advice proceedings. In addition, there are registers 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 par- ties to administer and facilitate mediation pro- ceedings. In the area of business mediation, two associations have been established to promote the use of mediation for the settlement of busi - ness and commercial disputes. In business dis- pute resolution, accredited (certified) mediators are used, such as mediators registered with the
Mediators Federation Netherlands, who meet certain 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 Arbitra- tion Act (DAA), which is laid down in Sections 1020–1077, DCCP. The DAA contains mandatory and non-mandatory provisions. 13.2 Subject Matters Not Referred to Arbitration Pursuant to Section 1020(3) of the DCCP, the arbitration agreement may not serve to deter- mine legal consequences that cannot be freely determined by the parties. Matters of public pol- icy, and other matters reserved by law to the civil courts, cannot be referred to arbitration, includ- ing aspects of family law (divorce or adoption), intellectual property law, criminal law, insolvency law and corporate law (eg, the status of a lim- ited liability company, right of investigation, liq- uidation 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 docu- ments or if documents that would have had an influence on the decision were withheld by the other party (Section 1068, DCCP).
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