Code
of Civil Procedure
Title 1 Arbitration in the Netherlands
Section 1 Arbitration agreement and appointment of arbitrators
Article 1020 Arbitration agreements in general
- 1. Parties may agree to submit to arbitration
disputes which have arisen or may arise between them out of a defined
legal relationship, whether contractual or not.
- 2. The arbitration agreement mentioned in paragraph (1) includes both
a submission by which the parties bind themselves to submit to arbitration
an existing dispute between them and an arbitration clause under which
parties bind themselves to submit to arbitration disputes which may arise
in the future between them.
- 3. The arbitration agreement shall not serve to determine legal consequences
of which the parties cannot freely dispose.
- 4. Parties may also agree to submit the following matters to arbitration:
(a) the determination only of the quality or
condition of goods;
(b) the determination only of the quantum of
damages or a monetary debt;
(c) the filling of gaps in, or modification
of, the legal relationship between the parties referred to in paragraph
(1).
- 5. The term “arbitration agreement” includes an arbitration
clause which is contained in Articles of association or rules which bind
the parties.
- 6. Arbitration rules referred to in an arbitration agreement shall be
deemed to form part of that agreement.
Article 1021 Form of arbitration agreement
The arbitration agreement must be proven by an instrument in writing.
For this purpose an instrument in writing which provides for arbitration
or which refers to standard conditions providing for arbitration is sufficient,
provided that this instrument is expressly or impliedly accepted by or
on behalf of the other party. The arbitration agreement may be proven
also by electronic means. Article 227a paragraph 1 of the Civil Code applies
accordingly.
Article 1022 Arbitration agreement and substantive
claim before Court; Arbitration agreement and interim measures by Court
- 1. A court seized of a dispute in respect of which an arbitration agreement
has been entered into shall declare that it has no jurisdiction if a party
invokes the existence of the said agreement before submitting a defence,
unless the agreement is invalid.
- 2. An arbitration agreement shall not prevent a party from requesting
a court to grant interim measures of protection or from applying to the
Provisional Relief Judge of the District Court for a decision in summary
proceedings in accordance with the provisions of Article 254. In the latter
case the Provisional Relief Judge shall decide the case in accordance
with the provisions of Article 1051.
- 3. An arbitration agreement shall not prevent a party from requesting
the court to order a preliminary hearing of witnesses, a preliminary report
of experts or a preliminary inspection of the place or thing in question,
unless at the time of the request one or more arbitrators had been appointed
already.
Article 1023 Who may be appointed as an arbitrator
Any natural person with legal capacity may be appointed as arbitrator. Unless
the parties have agreed otherwise in view of the impartiality (objectivity) and independence of the arbitral trubinal, no person shall be precluded from
appointment on the ground of his nationality.
Article 1024 Submission agreement: commencement of
arbitral proceedings
- 1. The submission agreement shall describe the matters which the parties
wish to submit to arbitration.
- 2. The arbitration shall be deemed to have been commenced by the conclusion
of the submission agreement, unless the parties have agreed to another
method of commencement.
- 3. If the parties have agreed that a third person shall appoint the
arbitrator or arbitrators, or any of them, either party shall send to
the third person a copy of the submission agreement.
Article 1025 Arbitration clause: commencement of arbitral
proceedings
- 1. In the case of an arbitration clause, the arbitration shall be deemed
to have been commenced on the day of receipt of a notice in writing in
which a party informs the other that he is commencing arbitration. The
said notice shall contain a description of the matters which the party
commencing the arbitration wishes to submit to arbitration.
- 2. If the parties have agreed that a third person shall appoint the
arbitrator or arbitrators, or any of them, the party who commences arbitration
shall send to the third person a copy of the notice mentioned in paragraph
(1).
- 3. The parties may agree that the arbitration shall be commenced in
a different 28 method from that provided for in this Article.
Article 1026 Number of arbitrators
- 1. The arbitral tribunal shall be composed of an uneven number of arbitrators.
The arbitral tribunal may also consist of a sole arbitrator.
- 2. If the parties have not agreed on the number of arbitrators, or if
the agreed method of determining that number is not carried out and the
parties cannot reach agreement on the number, the number shall, at the
request of either party, be determined by the Provisional Relief Judge
of the District Court.
- 3. If the parties have agreed on an even number of arbitrators, the
arbitrators shall appoint an additional arbitrator who shall act as the
chairman of the arbitral tribunal.
- 4. Failing agreement between the arbitrators in appointing the additional
arbitrator, such arbitrator shall, unless the parties have agreed otherwise,
be appointed, at the request of either party, by the Provisional Relief
Judge of the District Court.
Article 1027 Appointment of arbitrators
- 1. The arbitrator or arbitrators shall be appointed by any method agreed
by the parties. The parties may entrust to a third person the appointment
of the arbitrator or arbitrators or any of them. If no method of appointment
is agreed upon, the arbitrator or arbitrators shall be appointed by consensus
between the parties.
- 2. The appointment shall be made within two months after the commencement
of the arbitration, unless the arbitrator or arbitrators have already
been appointed. In the event, however, that any of the cases mentioned
in Article 1026(2) occurs, the period of two months shall start to run
on the day on which the number of arbitrators is determined. The period
for appointment shall be extended to three months if at least one of the
parties is domiciled or has his actual residence outside the Netherlands.
These periods may be shortened or extended by agreement between the parties.
- 3. If the appointment of the arbitrator or arbitrators is not made within
the period prescribed in the preceding paragraph, the arbitrator shall,
at the request of either party, be appointed by the Provisional Relief
Judge of the District Court. The other party shall be given an opportunity
to be heard.
- 4. The Provisional Relief Judge or the third person shall appoint the
arbitrator or arbitrators without regard to the question whether or not
there is a valid arbitration agreement. By participating in the appointment
of the arbitrator or arbitrators, the parties do not forfeit the right
to challenge the jurisdiction of the arbitral tribunal on the ground of
absence of a valid arbitration agreement.
Article 1028 Privileged position of a party in appointing
arbitrators
If the arbitration agreement gives one of the parties a privileged position
with regard to the appointment of the arbitrator or arbitrators, the other
party may, despite the method of appointment laid down in that agreement,
request the Provisional Relief Judge of the District Court within one
month after the commencement of the arbitration to appoint the arbitrator
or arbitrators. The other party shall be given an opportunity to be heard.
The provisions of Article 1027(4) shall apply accordingly.
Article 1029 Arbitrator's acceptance and release of
mandate
- 1. An arbitrator shall accept his mandate in writing.
- 2. An arbitrator who has accepted his mandate may, at his own request,
be released from his mandate either with the consent of the parties or
a third person designated by the parties, or in the absence thereof, by
the Provisional Relief Judge of the District Court.
- 3. An arbitrator who has accepted his mandate may be released from his
mandate by agreement between the parties.
- 4. An arbitrator who has accepted his mandate and who has become de
jure or de facto unable to perform his mandate, may, at the request of
either party, be released from his mandate by a third person designated
by the parties, or in the absence of such third person, by the Provisional
Relief Judge of the District Court.
Article 1030 Appointment of a substitute arbitrator
- 1. Unless the parties have agreed otherwise, an arbitrator who has been
released from his mandate in accordance with the provisions of Article
1029(2), (3) or (4) shall be replaced pursuant to the rules applicable
to the initial appointment. The same shall apply to an arbitrator who
has died.
- 2. If the parties have named the arbitrator or arbitrators in the arbitration
agreement, their replacement shall also take place in the cases prescribed
in paragraph (1) above, unless the parties have agreed that the arbitration
agreement shall terminate in such a case.
- 3. Unless the parties have agreed otherwise, the arbitral proceedings
shall be suspended by operation of law in case of replacement. Unless
the parties have agreed otherwise, the arbitral proceedings shall, after
the suspension ceases, continue from the stage they had reached.
Article 1031 Termination of the arbitral tribunal's
mandate; tribunal's failure to proceed
- 1. The parties may agree to terminate the mandate of the arbitral tribunal.
- 2. At the request of either party and after having heard the other party
and the arbitrator or arbitrators, the third person designated by the
parties, or in the absence thereof, the Provisional Relief Judge of the
District Court, may, having regard to all circumstances, terminate the
mandate of the arbitral tribunal if, despite repeated reminders, the arbitral
tribunal carries out its mandate in an unacceptably slow manner. In these
circumstances, the jurisdiction of the court shall revive, unless parties
have agreed otherwise.
Article 1032 Death of a party
- 1. Unless parties have agreed otherwise, neither the arbitration agreement
nor the mandate of the arbitral tribunal shall terminate on the ground
of the death of one of the parties.
- 2. The arbitral tribunal shall suspend the arbitral proceedings for
such period as may be determined by it. The arbitral tribunal may, at
the request of the legal successors of the deceased party, extend such
period. The arbitral tribunal shall give the other party an opportunity
to be heard in respect of such request. - 3. Unless the parties have agreed
otherwise, the arbitral proceedings shall, after any suspension, continue
from the stage they had reached.
Article 1033 Challenge of an arbitrator: grounds
- 1. An arbitrator may be challenged if circumstances exist that give
rise to justifiable doubts as to his impartiality or independence. A secretary
engaged by an arbitral tribunal may be challenged on the same grounds;
the provisions of Article 1035 shall apply accordingly to such a challenge.
- 2. A party may only challenge an arbitrator appointed by him on grounds
of which he has become aware after the appointment has been made.
- 3. A party may not challenge an arbitrator appointed by a third person
or the 60 Provisional Relief Judge of the District Court if he has acquiesced
in this appointment, unless he has become aware of the ground for challenge
after the appointment has been made.
Article 1034 Duty to disclose
- 1. A prospective arbitrator or secretary who presumes that he could
be challenged shall disclose in writing to the person who has approached
him the existence of such grounds.
- 2. A person who has been appointed as arbitrator or secretary shall,
if the parties have not previously been notified, immediately notify the
parties as prescribed in the preceding paragraph.
Article 1035 Challenge of an arbitrator: procedure
- 1. The challenge and the grounds therefore
shall be notified in writing by the challenging party to the challenged
arbitrator, the other members of the arbitral tribunal, the other party
and, if a third person has appointed the challenged arbitrator, this third
person. The arbitral tribunal may suspend the arbitral proceedings as
of the day of receipt of the notification.
- 2. If the challenged arbitrator does not
withdraw within two weeks after the day of receipt of the notification,
the Provisional Relief Judge of the District Court shall, at the request
of either party, decide on the merits of the challenge. If such request
is not made within four weeks after the day of receipt of the notification,
the right to challenge shall be barred and the arbitral proceedings, if
suspended, shall continue from the stage they had reached.
- 3. If the challenged arbitrator withdraws,
or if the challenge is upheld by the Provisional Relief Judge of the District
Court, the arbitrator shall, unless the parties have agreed otherwise,
be replaced in accordance with the rules governing his initial appointment.
The provisions of Article 1030(2) and (3) shall apply accordingly.
- 4. If the challenged arbitrator or one or
both of the parties is domiciled or has his actual residence outside the
Netherlands, the periods mentioned in paragraph (2) above shall be six
and eight weeks respectively.
Section 2 The Arbitral proceedings
Article 1036 Determination of rules of procedure
Subject to the provisions of this Title, the arbitral proceedings shall
be conducted in such manner as agreed between the parties or, to the extent
that the parties have not agreed, as determined by the arbitral tribunal.
Article 1037 Place of arbitration
- 1. The place of arbitration shall be determined by agreement of the
parties, or failing such agreement, as determined by the arbitral tribunal.
The determination of the place of arbitration establishes also the place
where the award shall be made.
- 2. If the place of arbitration has not been determined either by the
parties or the arbitral tribunal, the place of making the award as stated
by the arbitral tribunal in the award shall be deemed to be the place
of arbitration.
- 3. The arbitral tribunal may hold hearings, deliberate, and examine
witnesses and experts at any other place, within or outside the Netherlands,
which it deems appropriate.
Article 1038 Representation and assistance
- 1. The parties may appear before the arbitral tribunal in person, be
represented by a practising lawyer, or be represented by any other person
expressly authorised in writing for this purpose.
- 2. The parties may be assisted in the arbitral proceedings by any persons
they may choose.
Article 1039 Equal treatment of parties; hearing;
right to produce witnesses and experts; production of documents; rules
of evidence
- 1. The parties shall be treated with equality. The arbitral tribunal
shall give each party an opportunity to substantiate his claims and to
present his case.
- 2. The arbitral tribunal shall, at the request of either party or on
its own initiative, give the parties an opportunity of making an oral
presentation.
- 3. The arbitral tribunal may, at the request of either party, allow
a party to produce witnesses or experts. The arbitral tribunal shall have
the power to designate one of its members to examine witnesses or experts.
- 4. The arbitral tribunal shall have the power to order the production
of documents.
- 5. Unless the parties have agreed otherwise, the arbitral tribunal shall
have discretion in the rules of evidence to be applied.
Article 1040 Default of appearance of a party
- 1. If the claimant, without showing good cause, fails to communicate
his statement of claim or duly to explain the claim, in spite of having
had a reasonable opportunity to do so, the arbitral tribunal may terminate
the arbitral proceedings by means of an arbitral award.
- 2. If the respondent, without showing good cause, fails to submit his
defence, in spite of having been given a reasonable opportunity to do
so, the arbitral tribunal may render an award forthwith.
3. In the circumstances mentioned in paragraph (2) above, the arbitral
tribunal shall render an award in favour of the claimant, unless it considers
the claim to be unlawful or unfounded. Before rendering an award, the
arbitral tribunal may require the claimant to produce evidence in support
of one or more of his allegations.
Article 1041 Examination (hearing) of witnesses
- 1. If an examination of witnesses takes place, the arbitral tribunal
shall determine the time and place of the examination and the manner in
which the examination shall proceed. If the arbitral tribunal deems it
necessary, it shall examine the witnesses on oath or affirmation as provided
in Article 107(1).
- 2. If a witness does not appear voluntarily or, having appeared, refuses
to give evidence, the arbitral tribunal may allow a party who so requests,
within a period of time determined by the arbitral tribunal, to petition
the Provisional Relief Judge of the District Court to appoint a Judge-Commissary
before whom the examination of the witness shall take place. The examination
shall take place in the same manner as in ordinary court proceedings,
on the understanding that the clerk of the District Court shall give the
arbitrator or arbitrators an opportunity to attend the examination of
the witness.
- 3. The clerk of the District Court shall sends without delay a copy
of the record of the examination to the arbitral tribunal and the parties.
- 4. The arbitral tribunal may suspend the proceedings until the day on
which it has received the record of the examination.
Article 1042 Experts appointed by arbitral tribunal
- 1. The arbitral tribunal may appoint one or more experts to give advice.
The arbitral tribunal shall communicate as soon as possible to the parties
a copy of the appointment and the terms of reference of the experts.
- 2. The arbitral tribunal may require a party to provide the experts
with the information required by them and to give them the necessary cooperation.
- 3. Upon receipt of the expert's report, the arbitral tribunal shall
provide a copy of the report to the parties without delay.
- 4. At the request of either party, the experts shall be examined at
a hearing. A party wishing to make such request shall inform the arbitral
tribunal and the opposing party thereof without delay.
- 5. The arbitral tribunal shall give the parties an opportunity to examine
the experts and to produce their own experts.
- 6. The provisions of Article 1041(1) shall apply accordingly.
Article 1043 Order for personal appearance of the
parties
At any stage of the proceedings the arbitral tribunal may order the parties
to appear in person for the purpose of providing information or attempting
to arrive at a settlement.
Article 1044 Request for information on foreign law
- 1. The arbitral tribunal may, through the intervention of the Provisional
Relief Judge of the District Court at The Hague, ask for information as
mentioned in Article 3 of the European Convention on Information on Foreign
Law, concluded at London, 7 June 1968 (Dutch Treaty Series 1968, 142).
The Provisional Relief Judge shall, unless he considers the request to
be without merit, send the request without delay to the agency mentioned
in Article 2 of said Convention and notify the arbitral tribunal thereof.
- 2. The arbitral tribunal may suspend the proceedings until the day on
which it has 105 received the answer to its request for information.
Article 1045 Third parties
- 1. At the written request of a third party who has an interest in the
outcome of the arbitral proceedings, the arbitral tribunal may permit
such party to join the proceedings, or to intervene therein. The arbitral
tribunal shall send without delay a copy of the request to the parties.
- 2. A party who claims to be indemnified by a third party may serve a
notice of joinder on such a party. A copy of the notice shall be sent
without delay to the arbitral tribunal and the other party.
- 3. The joinder, intervention or joinder for the claim of indemnity may
only be permitted by the arbitral tribunal, having heard the parties,
if the third party accedes by agreement in writing between him and the
parties to the arbitration agreement.
- 4. On the grant of a request for joinder, intervention, or joinder for
the claim of indemnity, the third party becomes a party to the arbitral
proceedings. Unless the parties have agreed there on the arbitral tribunal
shall determine the further conduct of the proceedings.
Article 1046 Consolidation of arbitral proceedings
- 1. If arbitral proceedings have been commenced before an arbitral tribunal
in the Netherlands concerning a subject matter which is connected with
the subject matter of arbitral proceedings commenced before another arbitral
tribunal in the Netherlands, any of the parties may, unless the parties
have agreed otherwise, request the Provisional Relief Judge of the District
Court in Amsterdam to order a consolidation of the proceedings.
- 2. The Provisional Relief Judge may wholly or partially grant or refuse
the request, after he has given all parties and the arbitrators an opportunity
to be heard. His decision shall be communicated in writing to all parties
and the arbitral tribunals involved.
- 3. If the Provisional Relief Judge orders consolidation in full, the
parties shall in consultation with each other appoint one arbitrator or
an uneven number of arbitrators and determine the procedural rules which
shall apply to the consolidated proceedings. If, within the period of
time prescribed by the Provisional Relief Judge, the parties have not
reached agreement on the above, the Provisional Relief Judge shall, at
the request of any of the parties, appoint the arbitrator or arbitrators
and, if necessary, determine the procedural rules which shall apply to
the consolidated proceedings. The Provisional Relief Judge shall determine
the remuneration for the work already carried out by the arbitrators whose
mandate is terminated by reason of the full consolidation.
- 4. If the Provisional Relief Judge orders partial consolidation, he
shall decide which disputes shall be consolidated. The Provisional Relief
Judge shall, if the parties fail to agree within the period of time prescribed
by him, at the request of any of the parties, appoint the arbitrator or
arbitrators and determine which rules shall apply to the consolidated
proceedings. In this event the arbitral tribunals before which arbitrations
have already been commenced shall suspend those arbitrations. The award
of the arbitral tribunal appointed for the consolidated arbitration shall
be communicated in writing to the other arbitral tribunals involved. Upon
receipt of this award, these arbitral tribunals shall continue the arbitrations
commenced before them and decide in accordance with the award rendered
in the consolidated proceedings.
- 5. The provisions of Article 1027(4) shall apply accordingly in the
cases mentioned in paragraphs (3) and (4) above.
- 6. An award rendered under paragraphs (3) and (4) above shall be subject
to appeal to a second arbitral tribunal if and to the extent that all
parties involved in the consolidated proceedings have agreed upon such
an appeal.
Article 1047 Section 2 of Title 1 is not applicable to quality
arbitration
With the exception of the provisions of Article 1037, the provisions of
this Section shall not apply to arbitrations concerning the matters mentioned
in Article 1020(4)(a). In that case the proceedings shall be conducted
in the manner agreed upon by the parties or, to the extent that the parties
have not agreed thereon, as determined by the arbitral tribunal.
Article 1048 Time limit for making the award
The arbitral tribunal is free to determine the time when the award shall
be made.
Article 1049 Types of award
The arbitral tribunal may render a final award, a partial final award,
or an interim award.
Article 1050 Appeal to second arbitral tribunal
- 1. An appeal from the arbitral award to a second arbitral tribunal is
possible only if the parties have agreed thereto.
- 2. Unless the parties have agreed otherwise, an appeal to a second arbitral
tribunal from a partial final award can be lodged only in conjunction
with an appeal from the last final award.
- 3. Unless the parties have agreed otherwise, an appeal to a second arbitral
tribunal from an interim award can be lodged only in conjunction with
an appeal from a final or partial final award.
- 4. Unless the parties have agreed otherwise, an appeal to a second arbitral
tribunal shall be lodged within three months after the date of deposit
of the award with the Registry of the District Court.
Article 1051 Summary arbitral proceedings
- 1. parties may by agreement empower the arbitral tribunal or its chairman
give a decision (arbitral award) in summary arbitral proceedings, within
the limits imposed by Article 254(1).
- 2. In the event that, notwithstanding such agreement, the case is brought
before the Provisional Relief Judge of the District Court in summary proceedings,
he may, if a party appeals to the existence of the said agreement, taking
into account all circumstances, declare to have no jurisdiction by referring
the case to the agreed summary arbitral proceedings, unless the said agreement
is invalid.
- 3. A decision rendered in summary arbitral proceedings shall be regarded
as an arbitral award to which the provisions of Sections Three to Five
inclusive of this Title shall be applicable.
- 4. In case of a referral to the summary arbitral proceedings mentioned
in paragraph 2, no appeal may be lodged against the decision of the Provisional
Relief Judge of the District Court.
Article 1052 Pleas as to the jurisdiction of the arbitral
tribunal
- 1. The arbitral tribunal shall have the power to decide on its own jurisdiction.
- 2. A party who appeared in the arbitral proceedings shall raise a plea
that the arbitral tribunal lacks jurisdiction on the ground that there
is no valid arbitration agreement, unless the plea is made on the ground
that the dispute is not capable of settlement by arbitration by virtue
of Article 1020(3), before submitting a defence; thereafter that party
will be barred from raising this plea in the arbitral proceedings or in
proceedings before the court.
- 3. A party who has participated in the constitution of the arbitral
tribunal may not, in the arbitral proceedings or in proceedings before
the court, raise the plea that the arbitral tribunal lacks jurisdiction
on the ground that the arbitral tribunal is constituted in violation of
the applicable rules. A party who has made an appearance in the arbitral
proceedings and who has not participated in the constitution of the arbitral
tribunal, shall raise the plea that the arbitral tribunal lacks jurisdiction
on the ground that the arbitral tribunal is constituted in violation of
the applicable rules before submitting a defence; thereafter that party
will be barred from raising this plea in the arbitral proceedings or in
proceedings before the court.
- 4. Any decision in which the arbitral tribunal declares that it has
jurisdiction can be challenged only by the means of recourse mentioned
in Article 1064(1) in conjunction with the challenge of a subsequent final
or partial final award.
- 5. Unless the parties have agreed otherwise, the court shall have jurisdiction
to try the case if the arbitral tribunal declares that it lacks jurisdiction.
- 6. Appeal to a second arbitral tribunal shall, if agreed, be allowed
against both a decision of the arbitral tribunal that it has jurisdiction
and a decision that it lacks jurisdiction. In such event the court shall
have jurisdiction under paragraph (4) or (5) above only after a decision
is made on appeal to the second arbitral tribunal or after the time limit
for appeal has lapsed without the appeal having been lodged or earlier,
if the right to appeal is renounced in writing.
Article 1053 Separability of the arbitration clause
An arbitration agreement shall be considered and decided upon as a separate
agreement. The arbitral tribunal shall have the power to decide on the
validity of the contract of which the arbitration agreement forms part
or to which the arbitration agreement is related.
Article 1054 Rules applicable to the substance of
the dispute
- 1. The arbitral tribunal shall make its award in accordance with the
rules of law.
- 2. If a choice of law is made by the parties, the arbitral tribunal
shall make its award in accordance with the rules of law chosen by the
parties. Failing such choice of law, the arbitral tribunal shall make
its award in accordance with the rules of law which it considers appropriate.
- 3. The arbitral tribunal shall decide as amiable compositeur (as prudent
men in accordance with reasonableness and fairness) if parties by agreement
have authorised it to do so.
- 4. In all cases the arbitral tribunal shall take into account any applicable
trade usages.
Article 1055 Enforceability of award notwithstanding
arbitral appeal
Where an appeal from the award to a second arbitral tribunal is provided
for, the arbitral tribunal may declare its award provisionally enforceable
in cases where the court has the power to do so. The arbitral tribunal
may determine that such enforceability of the award is subject to the
giving of security.
Article 1056 Penalty for non-compliance
The arbitral tribunal has the power to impose a penalty for non-compliance
in cases where the court has such power. The provisions of Articles 611
a to 611i inclusive shall apply accordingly, although in the cases mentioned
in Article 611d, an application for the revocation, suspension or reduction
of the penalty shall be made to the Provisional Relief Judge of the District
Court with whose Registry the original of the award shall be deposited
in accordance with Article 1058(1).
Article 1057 Majority decision; refusal of minority
to sign; form and content of award
- 1. Unless the parties have agreed otherwise, if the arbitral tribunal
is composed of more than one arbitrator, it shall decide by a majority
of votes.
- 2. The award shall be in writing and signed by the arbitrator or arbitrators.
- 3. If a minority of the arbitrators refuses to sign, the other arbitrators
shall make 156mention thereof beneath the award signed by them. This statement
shall be signed by them. A similar statement shall be made if a minority
is incapable of signing and it is unlikely that this impediment will cease
to exist within a reasonable time.
- 4. In addition to the decision, the award shall contain in any case:
(a) the names and addresses of the arbitrator or arbitrators;
(b) the names and addresses of the parties;
(c) the date on which the award is made;
(d) the place where the award is made;
(e) the reasons for the decision, unless the award concerns merely the
determination 162 only of the quality or condition of goods as provided
in Article 1020(4)( a ) or the recording of a settlement as provided in
Article 1069.
Article 1058 Notification and deposit of award; termination
of mandate of arbitral tribunal
- 1. The arbitral tribunal shall ensure that without delay:
(a) a copy of any award, signed by an arbitrator or the secretary of the
arbitral tribunal, is communicated to the parties;
(b) the original of the final or partial final award is deposited with
the Registry of the District Court within whose district the place of
arbitration is located.
- 2. Without prejudice to the provisions of Articles 1060 and 1061, the
mandate of the arbitral tribunal shall terminate upon the deposit of the
last final award with the Registry.
Article 1059 Res Judicata of the arbitral award (final
and binding status of the award)
- 1. Only a final or partial final arbitral award is capable of acquiring
the force of res Judicata (award has become final and binding). The award
shall have such force from the day on which it is made.
- 2. If, however, an appeal to a second arbitral tribunal is provided
for, the final or partial final award shall have the force of res judicata
from the day on which the time limit for lodging appeal has lapsed or,
if the appeal has been lodged, the day on which a decision is rendered
on appeal, if and to the extent that the award rendered at first instance
is affirmed on appeal.
Article 1060 - Rectification and correction of the
award
- 1. Not later than thirty days after the date of deposit of the award
with the Registry of the District Court, a party may request the arbitral
tribunal in writing to rectify a manifest computing or clerical error
in the award.
- 2. If the details referred to in Article 1057(4)( a ) to (d ) inclusive
are stated incorrectly or are partially or wholly absent from the award,
a party may, not later than thirty days after the date of deposit of the
award with the Registry of the District Court, request in writing that
the arbitral tribunal correct the mistake or omission.
- 3. A copy of the request mentioned in paragraph (1) or (2) above shall
be send by the arbitral tribunal to the other party.
- 4. An arbitral tribunal may, not later than thirty days after the date
of deposit of the award with the Registry of the District Court, also
make on its own initiative the rectification or the correction mentioned
in paragraph (1) or (2) above.
- 5. In the event that the arbitral tribunal makes the rectification or
correction, it shall record and sign it on the original and copies of
the award, or set it out in a separately signed document, which shall
be treated as forming part of the award. The provisions of Articles 1057(1)
up to and including (3) and 1058(1) shall apply accordingly.
- 6. If the arbitral tribunal rejects the request for rectification or
correction, it shall inform the parties thereof in writing.
- 7. A request under this Article does not suspend the enforcement or
reversal of the award unless the Provisional Relief Judge or the District
Court deems that there are serious reasons for so doing while a decision
on the request is pending.
Article 1061 Additional award
- 1. If the arbitral tribunal has failed to decide on one or more matters
which have 180 been submitted to it, either party may, not later than
thirty days after the date of deposit of the award with the Registry of
the District Court, request the arbitral tribunal to render an additional
award.
- 2. A copy of the request shall be communicated by the arbitral tribunal
to the other 181 party.
- 3. The arbitral tribunal shall give the parties an opportunity to be
heard before 182 deciding on the request.
- 4. An additional award shall be regarded as an arbitral award to which
the provisions 183 of Section Three to Five inclusive of this Title shall
be applicable.
- 5. If the arbitral tribunal rejects a request for an additional award,
it shall inform the 184 parties accordingly in writing. A copy of this
notification, signed by an arbitrator or the secretary of the arbitral
tribunal, shall be deposited with the Registry of the District Court,
in accordance with the provisions of Article 1058(1).
- 6. If an appeal to a second arbitral tribunal has been agreed, the arbitral
award 185 rendered at first instance may only be supplemented on appeal.
Any request for supplementation shall be made within the period of time
applicable to the lodging of the appeal.
Section 4 Enforcement of the arbitral
award
Article 1062 Granting permission for enforcement
- 1. Enforcement in the Netherlands of a final or partial final arbitral
award which is not open to appeal to a second arbitral tribunal, or which
is declared immediately enforceable, or a final or partial award rendered
on arbitral appeal, can take place only after the Provisional Relief Judge
of the District Court with whose Registry the original of the award shall
be deposited by virtue of Article 1058(1), has, in pursuance of a request
of one of the parties, granted permission for enforcement.
- 2. Permission for enforcement shall be marked on the original of the
arbitral award or, if no deposit of the arbitral award has taken place,
shall be laid down in a decision. The clerk of the court sends without
delay to the parties a certified copy of the arbitral award, which includes
the mark of the permission for enforcement, or a certified copy of the
decision in which the permission for enforcement is granted.
- 3. If an appeal can be lodged from the award to a second arbitral tribunal,
a permission for enforcement of an award rendered at first instance which
is not declared immediately enforceable may be granted only after the
time limit for lodging the appeal to a second arbitral tribunal has lapsed
without the appeal having been lodged or earlier, if the right to appeal
is renounced in writing.
- 4. If the Provisional Relief Judge of the District Court grants permission
for enforcement, the means of recourse mentioned in Article 1064(1) shall
be the only legal remedies available to the respondent. The reversal or
the revocation of an arbitral award causes by operation of law the annulment
of any permission for enforcement.
Article 1063 Refusal of a permission for enforcement
- 1. Enforcement of an arbitral award may be refused by the Provisional
Relief Judge of the District Court only if the award or the manner in
which it was made is manifestly contrary to public policy or good morals,
or if enforcement is ordered notwithstanding the lodging of an appeal
in violation of Article 1055, or if a penalty for non-compliance is imposed
in violation of Article 1056. In the latter case, the refusal shall be
limited to the enforcement of the penal sum.
- 2. The Court Clerk shall without delay send to the parties a certified
copy of the Provisional Relief Judge's decision to refuse leave for enforcement.
- 3. The petitioner may lodge an appeal to the Court of Appeal against
refusal to grant leave for enforcement within two months after the date
on which the decision is signed.
- 4. If refusal to grant leave for enforcement is affirmed on appeal,
the time limit for recourse to the Supreme Court shall be two months after
the date on which the decision on appeal is signed.
- 5. If leave for enforcement is granted on appeal or after recourse to
the Supreme Court, the provisions of the first sentence of Article 1062(4)
shall apply accordingly.
Section 5 Reversal and revocation
of the arbitral award
Article 1064 Reversal in general
- 1. Recourse to a court against a final or partial final arbitral award
which is not open to appeal to a second arbitral tribunal, or a final
or partial final award rendered on arbitral appeal, may be made only by
an application for a reversal or revocation in accordance with this Section.
- 2. An application for a reversal shall be made to the District Court
with whose Registry the original of the award shall be deposited by virtue
of Article 1058(1).
- 3. An application for a reversal may be made as soon as the award has
acquired the force of res judicata. The right to make an application shall
be extinguished three months after the date of deposit of the award with
the Registry of the District Court. However, if the award together with
leave for enforcement is officially served on the other party, that party
may make an application for a reversal within three months after the said
service, irrespective of whether the period of three months mentioned
in the preceding sentence has lapsed.
- 4. An application to reverse an interim arbitral award may be made only
in conjunction with an application for a reversal a final or partial final
award.
- 5. All grounds for a reversal shall, on pain of being barred, be mentioned
in the writ of summons.
Article 1065 Grounds for reversal
- 1. A reversal of the award can take place only on one or more of the
following grounds:
(a) absence of a valid arbitration agreement; (b) the arbitral tribunal
was constituted in violation of the rules applicable thereto;
(c) the arbitral tribunal has not complied with its mandate;
(d) the award is not signed or does not contain reasons in accordance
with the provisions of Article 1057;
(e) the award, or the manner in which it was made, violates public policy
or good morals.
- 2. The ground mentioned in paragraph (1)( a ) above shall not constitute
a ground for a reversal in the case mentioned in Article 1052(2).
- 3. The ground mentioned in paragraph (1)(b ) above shall not constitute
a ground for a reversal in the cases mentioned in Article 1052(3).
- 4. The ground mentioned in paragraph (1)(c ) above shall not constitute
a ground for a reversal if the party who invokes this ground has participated
in the arbitral proceedings without invoking such ground, although it
was known to him that the arbitral tribunal did not comply with its mandate.
- 5. If the arbitral tribunal has awarded in excess of, or differently
from, what was claimed, the arbitral award shall be partially reversed
to the extent that the part of the award which is in excess of or different
from the claim can be separated from the remaining part of the award.
- 6. If and to the extent that the arbitral tribunal has failed to decide
one or more matters submitted to it, the application for a reversal on
the ground mentioned in paragraph (1)(c ) above shall be admissible only
if an additional award mentioned in Article 1061(1) is made, or the request
for an additional award mentioned in Article 1061(1) has wholly or partially
been rejected.
- 7. Notwithstanding the provisions of the second sentence of Article
1064(3), the time limit for making an application for a reversal mentioned
in the preceding paragraph shall be three months from the date of deposit
of the additional award or the copy of the notification mentioned in Article
1061(5) with the Registry of the District Court.
Article 1066 Suspension of enforcement
- 1. An application for a reversal shall not suspend the enforcement of
the award.
- 2. However, the court which decides on an application for a reversal
may, at the request of either party, if it considers the request to be
justified, suspend enforcement until a final decision is made on the application
for a reversal.
- 3. A copy of the request for suspension shall be communicated by the
Court Clerk to the other party without delay.
- 4. The court shall decide on the request after the other party has been
given an opportunity to be heard.
- 5. Upon granting the request, the court may order the petitioner to
give security. Upon denying the request, the court may order the other
party to give security.
- 6. If enforcement is suspended, either party may request the court to
lift the suspension. The provisions of paragraphs (3) to (5) inclusive
shall apply accordingly.
Article 1067 Consequences of a reversal
Unless the parties have agreed otherwise, as soon as a decision which
has reversed the award has become final, the jurisdiction of the court
shall revive.
Article 1068 Revocation of the award in case of fraud,
forgery or new documents
- 1. Revocation of the award can take place only on one or more of the
following grounds:
(a) the award is entirely or partially based on fraud which is discovered
after the award is made and which is committed during the arbitral proceedings
by or with the knowledge of the other party;
(b) the award is entirely or partially based on documents which, after
the award is made, are discovered to have been forged;
(c) after the award is made, a party obtains documents which would have
had an influence on the decision of the arbitral tribunal and which were
withheld as a result of the acts of the other party.
- 2. An application for revocation shall be brought, with application
of Article 1064 paragraph 3, or, if this would lead to a later date, within
three months after the fraud or forgery has become known or the party
has obtained the new documents, to the Court of Appeal which would have
had jurisdiction to decide on an appeal relating to the application for
a reversal as mentioned in Article 1064. Where the party who has grounds
to claim a revocation has died within the period meant in the first sentence,
Article 341 shall apply accordingly. The legal proceedings are to be initiated
by means of a writ of summons that meets all the requirements of Article
111 and will be carried out in a way as provided for by the Second Title
of the First Book of the Code of Civil Procedure. Article 1066 shall apply
accordingly.
- 3. When the judge acknowledges the presented ground or grounds for revocation,
he will reverse the arbitral award in full or in part. Article 1067 shall
apply accordingly.
Section 6 Arbitral award on agreed
terms
Article 1069 Settlement during arbitral procedure
- 1. If during the arbitral proceedings the parties reach a settlement,
the arbitral tribunal may, at the joint request of the parties, record
the content of the settlement in the form of an arbitral award. The arbitral
tribunal may refuse the request without giving reasons.
- 2. An arbitral award on agreed terms shall be regarded as an arbitral
award to which the provisions of Sections Three to Five inclusive of this
Title shall be applicable, provided that:
(a) the award may be reversed only on the ground
that it is contrary to public policy or good morals,
(b) notwithstanding the provisions of Article
1057, the award does not need to contain reasons, and
(c) the award is also signed by the parties.
Article 1070 No appeal against certain decisions of
the Provisional Relief Judge
No appeal may be lodged against the decisions of the Provisional Relief
Judge of the District Court mentioned in Sections One to Three inclusive
of this Title.
Article 1071 No solicitor (attorney) required for
certain requests
In the cases mention in Articles 1026(2) and (4), 1027(3), 1028, 1044(1),
and 1062(1), the application and if applicable the answer need not be
filed by an attorney.
Article 1072 Agreement on competent Provisional Relief
Judge in certain cases
The parties may designate by agreement the Provisional Relief Judge of
a specific District Court as the Provisional Relief Judge competent for
the matters mentioned in Articles 1026(2) and (4), 1027(3), 1028, 1029(2)
and (4), 1031(2), 1035(2) and 1041(2).
Article 1073 Applicability of Title One to arbitration
within the Netherlands; appointment of arbitrators when the place of arbitration
is unknown
- 1. The provisions of this Title shall apply if the place of arbitration
is situated within the Netherlands.
- 2. If the parties have not determined the place of arbitration, the
appointment or challenge of the arbitrator or arbitrators or the secretary
engaged by an arbitral tribunal may take place in accordance with the
provisions contained in Section One of this Title if at least one of the
parties is domiciled or has his actual residence in the Netherlands.
Title 2 Arbitration outside the Netherlands
Article 1074 Foreign arbitration agreement and substantive
claim before Dutch Court; foreign arbitration agreement and provisional
measures by Dutch Court
- 1. A court in the Netherlands seized of a dispute in respect of which
an arbitration agreement has been concluded with the result that arbitration
shall take place outside the Netherlands shall declare that it has no
jurisdiction if a party appeals to the existence of the said agreement
before submitting a defence, unless the agreement is invalid under the
law applicable thereto.
- 2. The agreement mentioned in paragraph (1) shall not prevent a party
from requesting a court in the Netherlands to grant interim measures of
protection, or from applying to the Provisional Relief Judge of the District
Court for a decision in summary proceedings in accordance with the provisions
of Article 254.
Article 1075 Recognition and enforcement of foreign
award under Treaties
An arbitral award made in a foreign State to which a treaty concerning
recognition and enforcement is applicable may be recognised and enforced
in the Netherlands. The provisions of Articles 985 to 991 inclusive shall
apply accordingly to the extent that the treaty does not contain provisions
deviating therefrom and provided that the Provisional Relief Judge of
the District Court shall be substituted for the District Court and the
time limit for appeal from his decision and for recourse to the Supreme
Court shall be two months.
Article 1076 Recognition and enforcement of foreign
award without Treaties
- 1. If no treaty concerning recognition and
enforcement is applicable, or if an applicable treaty allows a party to
rely upon the law of the country in which recognition or enforcement is
sought, an arbitral award made in a foreign State may be recognised in
the Netherlands and its enforcement may be sought in the Netherlands,
upon submission of the original or a certified copy of the arbitration
agreement and arbitral award, unless:
(A) the party against whom recognition or enforcement
is sought, asserts and proves that:
(a) a valid arbitration agreement under the
law applicable thereto is lacking;
(b) the arbitral tribunal is constituted in
violation of the rules applicable thereto;
(c) the arbitral tribunal has not complied
with its mandate;
(d) the arbitral award is still open to an
appeal to a second arbitral tribunal, or to a court in the country in
which the award is made;
(e) the arbitral award has been reversed by
a competent authority of the country in which that award is made;
(B) the court finds that the recognition or
enforcement would be contrary to public policy.
- 2. The ground mentioned in paragraph (1)(A)(
a ) above shall not constitute a ground for refusal of recognition or
enforcement if the party who invokes this ground has made an appearance
in the arbitral proceedings and, before submitting a defence, has not
raised the plea that the arbitral tribunal lacks jurisdiction on the ground
that a valid arbitration agreement is lacking.
- 3. The ground mentioned in paragraph (1)(A)(b
) above shall not constitute a ground for refusal of recognition or enforcement
if the party who invokes this ground has participated in the constitution
of the arbitral tribunal, or if he has not participated in the constitution
of the arbitral tribunal, has made an appearance in the arbitral proceedings
and, before submitting a defence, has not raised the plea that the arbitral
tribunal lacks jurisdiction on the ground that the arbitral tribunal is
constituted in violation of the applicable rules.
- 4. The ground mentioned in paragraph (1)(A)(c
) above shall not constitute a ground for refusal of recognition or enforcement
if the party who invokes this ground has participated in the arbitral
proceedings without raising it, although it was known to him that the
arbitral tribunal did not comply with its mandate.
- 5. If the award is in excess of, or different
from, what was claimed, the arbitral award shall be capable of partial
recognition or enforcement to the extent that the part of the award which
is in excess of or different from the claim can be separated from the
remaining part of the award.
- 6. The provisions of Articles 985 to 991
inclusive shall apply accordingly, provided that the Provisional Relief
Judge of the District Court shall be substituted for the District Court,
the time limit for appeal from his decision and for recourse to the Supreme
Court shall be two months, and no documents need be submitted evidencing
the enforceability of the arbitral award in the country in which it is
made.
- 7. If an application for the reversal of
an award made in a foreign State is made to a competent authority of the
country in which the award is made, the provisions of Article 1066(2)
to (6) inclusive shall apply accordingly when recognition or enforcement
is sought in the Netherlands.
end