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Arbitration & ADR
A German electricity generation company recently filed a request for arbitration against the Netherlands at the International Centre for Settlement of Investment Disputes. The application is based on the Dutch government's decision to phase out coal for electricity generation. The company has invoked an investor-state dispute settlement clause in the Energy Charter Treaty, which the European Union co-signed on behalf of the Netherlands. This marks the first investment arbitration against the Netherlands.
Third time lucky? The Hague Court dismisses Ecuador's defence against tribunal's non-pecuniary orderNetherlands | 04 February 2021
In the ongoing dispute between Ecuador and US energy multinational Chevron Corporation, The Hague District Court was again called upon to consider whether an award issued pursuant to the US-Ecuador bilateral investment treaty could be set aside. The ruling confirms The Hague court's positive view of investment arbitration and orders which are rather unconventional in such arbitration.
The Hague Court of Appeal sets aside ICC award because underlying purchase contract was procured by corruptionNetherlands | 19 December 2019
In recent setting aside proceedings, The Hague Court of Appeal had to decide whether an arbitral award issued in proceedings under the International Chamber of Commerce Arbitration Rules had to be set aside due to the fact that the award was contrary to public policy. In its assessment, the court took a bold approach. The decision demonstrates that while the court is conscious of the competence and authority of arbitral tribunals, it will assess a case individually and fully when it comes to public policy.
In 2018 the government adopted its new model bilateral investment treaty (BIT). Following this adoption, the government has now obtained the authorisation required to start the renegotiations with eight non-EU countries and conclude new BITs with two others. The government has made clear that the new model BIT is intended to serve as an opening offer that sets the scene for the negotiations. However, as each negotiation will have its own dynamic, it is difficult to predict what the new Dutch BITs will look like.
The Amsterdam Court of Appeal recently had to decide on an application for recognition and enforcement of an online arbitral award regarding a loan in bitcoins. To date, this has been a subject that the Dutch courts have seldom encountered. Notably, the Amsterdam Court of Appeal took a critical approach in what may be considered a test case for recognition and enforcement of online arbitral awards in the Netherlands.
The Netherlands Arbitration Institute (NAI) recently introduced a new transparency policy, which aims to enhance the transparency of arbitral proceedings without harming their confidential nature. This is a promising step by the NAI, which will hopefully contribute to a more cost-effective, efficient and credible arbitration practice in the Netherlands.
In June 2018 a new arbitration court specialised in art-related disputes was launched in The Hague. The court, which offers an attractive and efficient dispute resolution mechanism for cross-border art-related disputes, was founded by the Netherlands Arbitration Institute (NAI) in collaboration with Authentication in Art. According to the NAI's website, it has now started accepting arbitrator and mediator applications for the Court of Arbitration for Art.
The government recently adopted its new model bilateral investment treaty (BIT). The proposed changes, which are likely to limit investor protection, have now been incorporated, together with additional important amendments. The model BIT reflects two government objectives: a sustainable investment policy and a better balance between the rights and obligations of both states and investors.
A consultation process on the new draft Dutch model bilateral investment treaty (BIT) recently ended. The government is expected to publish the finalised text of the new model BIT later in 2018. The new model will serve as the basis for renegotiation of the 79 BITs that the Netherlands has with states outside the European Union. Among other things, it proposes significant changes to the conduct of arbitral proceedings.
The Hague Court of Appeal recently ruled that its decision on an application for the enforcement of a foreign arbitral award would not be stayed solely on the basis of pending setting aside proceedings at the place of arbitration. Further, the court ruled that the party requesting exequatur did not have to submit Dutch translations of the award. The decision is notable, as the appeal court explicitly acknowledged the New York Convention's pro-enforcement bias, which several courts have failed to do in recent years.
The Supreme Court recently ruled that a Dutch court may enforce an annulled arbitral award if, among other things, the local annulment decision is based on grounds other than those set out in Article V(1)(a)-(d) of the New York Convention and which are not internationally recognised, or the annulment decision is irreconcilable with Dutch private international law. This judgment offers important guidance as to the Dutch courts' discretion to enforce annulled awards.
Will ruling denying recognition of Yukos bankruptcy affect setting aside of $50 billion UNCITRAL award?Netherlands | 21 September 2017
The Amsterdam Court of Appeals recently ruled that the Russian liquidation order regarding OAO Yukos Oil Company is contrary to Dutch public order and therefore null and void. An interesting question is whether the judgment will have a bearing in the appeal of the annulment proceedings concerning the $50 billion Energy Charter Treaty arbitration case between former Yukos shareholders and Russia, which is pending before The Hague Court of Appeal.
Swatch/Tiffany setting-aside proceedings: court rules restraint must be exercised in reviewing arbitral decisionsNetherlands | 01 June 2017
The Amsterdam Court of Appeals recently annulled a 2013 Amsterdam District Court decision to set aside a $450 million arbitral award in proceedings between watchmaker Swatch and jeweller Tiffany. The main question for the court of appeals was whether the district court had been correct in holding that the tribunal had exceeded its authority. The judgment, which may be subjected to Supreme Court review, confirms the court's pro-arbitration and enforcement approach.
In a recent decision, the Supreme Court rigorously applied Article III of the New York Convention and ruled that a decision recognising an international arbitral award is no more subject to appeal than a decision recognising a domestic arbitral award. Further, the court rejected the plea that such an appeal should be available under Article 6 of the European Convention on Human Rights.