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.
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.
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 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 third-party arbitration funding market is clearly developing in the Netherlands. A number of international funders are active on the Dutch market and, for the past few years, several national funders have been equally active. It is difficult to say at this stage whether external regulation is required. Once funders cater more frequently to less experienced claimants (eg, small and medium-sized enterprises and consumers), regulation may become desirable.
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.