Netherlands -
Arbitration Act * 1 December 1986 Code of Civil Procedure - Book Four:
Arbitration
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1 |
Title
One: - Arbitration in the Netherlands
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2 |
Section One. - Arbitration Agreement
and Appointment of Arbitrators
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Article
1020 - Arbitration Agreements in General **
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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. |
5 |
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. |
6 |
3. The arbitration agreement shall not serve to determine
legal consequences of which the parties cannot freely dispose. |
7 |
4. Parties may also agree to submit the following matters
to arbitration: |
8 |
(a) the determination only of the quality or condition of
goods; |
9 |
(b) the determination only of the quantum of damages or
a monetary debt; |
10 |
(c) the filling of gaps in, or modification of, the
legal relationship between the parties referred to in paragraph (1). |
11 |
5. The term "arbitration agreement" includes
an arbitration clause which is contained in Articles of association or rules
which bind the parties. |
12 |
6. Arbitration rules referred to in an arbitration
agreement shall be deemed to form part of that agreement. |
13 |
Article 1021 - Form of Arbitration Agreement
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14 |
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. |
15 |
Article 1022 - Arbitration Agreement and Substantive Claim Before
Court; Arbitration Agreement and Interim Measures by Court
|
16 |
1. A court seized of a dispute in respect of which an
arbitration agreement has been concluded 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. |
17 |
2. An arbitration agreement shall not preclude a party
from requesting a court to grant interim measures of protection, or from
applying to the President of the District Court for a decision in summary proceedings
in accordance with the provisions of article 289. In the latter case the
President shall decide the case in accordance with the provisions of article
1051. |
18 |
Article 1023 - Who may be Appointed as an Arbitrator
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19 |
Any natural person of legal capacity may be appointed as
arbitrator. Unless the parties have agreed otherwise, no person shall be
precluded from appointment by reason of his nationality. |
20 |
Article 1024 - Submission Agreement: Commencement of Arbitral
Proceedings
|
21 |
1. The submission agreement shall describe the matters
which the parties wish to submit to arbitration. |
22 |
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. |
23 |
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. |
24 |
Article 1025 - Arbitration Clause: Commencement of Arbitral
Proceedings
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25 |
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. |
26 |
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). |
27 |
3. The parties may agree that the arbitration shall be
commenced in a different method from that provided for in this article. |
28 |
Article 1026 - Number of Arbitrators
|
29 |
1. The arbitral tribunal shall be composed of an uneven
number of arbitrators. The arbitral tribunal may also consist of a sole
arbitrator. |
30 |
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 President of the
District Court. |
31 |
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. |
32 |
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
President of the District Court. |
33 |
Article 1027 - Appointment of Arbitrators
|
34 |
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. |
35 |
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. |
36 |
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
President of the District Court. The other party shall be given an
opportunity to be heard. |
37 |
4. The President 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. |
38 |
Article 1028 - Privileged Position of a Party in Appointing
Arbitrators
|
39 |
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 President 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. |
40 |
Article 1029 - Arbitrator's Acceptance and Release of Mandate
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41 |
1. An arbitrator shall accept his mandate in writing. |
42 |
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 President of the District Court. |
43 |
3. An arbitrator who has accepted his mandate may be
released from his mandate by agreement between the parties. |
44 |
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
President of the District Court. |
45 |
Article 1030 - Appointment of a Substitute Arbitrator
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46 |
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. |
47 |
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. |
48 |
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. |
49 |
Article 1031 - Termination of the Arbitral Tribunal's Mandate;
Tribunal's Failure to Proceed
|
50 |
1. The parties may agree to terminate the mandate of the
arbitral tribunal. |
51 |
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 President 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 the parties
have agreed otherwise. |
52 |
Article 1032 - Death of a Party
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53 |
1. Unless the parties have agreed otherwise, neither the
arbitration agreement nor the mandate of the arbitral tribunal shall
terminate by reason of the death of one of the parties. |
54 |
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. |
55 |
3. Unless the parties have agreed otherwise, the arbitral
proceedings shall, after any suspension, continue from the stage they had
reached. |
56 |
Article 1033 - Challenge of an Arbitrator: Grounds
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57 |
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. |
58 |
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. |
59 |
3. A party may not challenge an arbitrator appointed by
a third person or the President 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. |
60 |
Article 1034 - Duty to Disclose
|
61 |
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. |
62 |
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. |
63 |
Article 1035 - Challenge of an Arbitrator: Procedure
|
64 |
1. The challenge and the grounds therefor 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. |
65 |
2. If the challenged arbitrator does not withdraw within
two weeks after the day of receipt of the notification, the President 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. |
66 |
3. If the challenged arbitrator withdraws, or if the
challenge is upheld by the President 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. |
67 |
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. |
68 |
Section Two. - The Arbitral
Proceedings
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69 |
Article 1036 - Determination of Rules of Procedure
|
70 |
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. |
71 |
Article 1037 - Place of Arbitration
|
72 |
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. |
73 |
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. |
74 |
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. |
75 |
Article 1038 - Representation and Assistance
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76 |
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. |
77 |
2. The parties may be assisted in the arbitral
proceedings by any persons they may choose. |
78 |
Article 1039 - Equal Treatment of Parties; Hearing; Right to Produce
Witnesses and Experts; Production of Documents; Rules of Evidence
|
79 |
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. |
80 |
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. |
81 |
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. |
82 |
4. The arbitral tribunal shall have the power to order
the production of documents. |
83 |
5. Unless the parties have agreed otherwise, the arbitral
tribunal shall have discretion in the rules of evidence to be applied. |
84 |
Article 1040 - Default of a Party
|
85 |
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. |
86 |
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. |
87 |
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. |
88 |
Article 1041 - Examination of Witnesses
|
89 |
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). |
90 |
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 President 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. The
Clerk of the District Court shall give the arbitrator or arbitrators an
opportunity of attending the examination of the witness. |
91 |
3. The Clerk of the District Court shall communicate
without delay to the arbitral tribunal and the parties a copy of the record
of the examination. |
92 |
4. The arbitral tribunal may suspend the proceedings
until the day on which it has received the record of the examination. |
93 |
Article 1042 - Experts Appointed by Arbitral Tribunal
|
94 |
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. |
95 |
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. |
96 |
3. Upon receipt of the expert's report, the arbitral
tribunal shall provide a copy of the report to the parties without delay. |
97 |
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. |
98 |
5. The arbitral tribunal shall give the parties an
opportunity to examine the experts and to produce their own experts. |
99 |
6. The provisions of article 1041(1) shall apply
accordingly. |
100 |
Article 1043 - Order for Personal Appearance of the Parties
|
101 |
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. |
102 |
Article 1044 - Request for Information on Foreign Law
|
103 |
1. The arbitral tribunal may, through the intervention
of the President 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
President 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. |
104 |
2. The arbitral tribunal may suspend the proceedings
until the day on which it has received the answer to its request for
information. |
105 |
Article 1045 - Third Parties
|
106 |
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. |
107 |
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. |
108 |
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. |
109 |
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. |
110 |
Article 1046 - Consolidation of Arbitral Proceedings
|
111 |
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 President of the District
Court in Amsterdam to order a consolidation of the proceedings. |
112 |
2. The President 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. |
113 |
3. If the President 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 President, the parties have not reached agreement on the
above, the President 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 President shall
determine the remuneration for the work already carried out by the
arbitrators whose mandate is terminated by reason of the full consolidation. |
114 |
4. If the President orders partial consolidation, he
shall decide which disputes shall be consolidated. The President 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. |
115 |
5. The provisions of article 1027(4) shall apply
accordingly in the cases mentioned in paragraphs (3) and (4) above. |
116 |
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. |
117 |
Article 1047 - Section Two Not Applicable to Quality Arbitration
|
118 |
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. |
119 |
Article 1048 - Time Limit for Making the Award
|
120 |
The arbitral tribunal is free to determine the time
when the award shall be made. |
121 |
Section Three. The Arbitral Award
|
122 |
Article 1049 - Types of Award
|
123 |
The arbitral tribunal may render a final award, a
partial final award, or an interim award. |
124 |
Article 1050 - Appeal to Second Arbitral Tribunal
|
125 |
1. An appeal from the arbitral award to a second
arbitral tribunal is possible only if the parties have agreed thereto. |
126 |
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. |
127 |
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. |
128 |
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. |
129 |
Article 1051 - Summary Arbitral Proceedings
|
130 |
1. The parties may agree to empower the arbitral
tribunal or its chairman to render an award in summary proceedings, within
the limits imposed by article 289(1). |
131 |
2. In the event that, notwithstanding such agreement,
the case is brought before the President of the District Court in summary
proceedings, he may, if a party invokes 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. |
132 |
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. |
133 |
4. In the case of a referral to the summary arbitral
proceedings mentioned in paragraph (2) above, no appeal may be lodged against
the decision of the President of the District Court. |
134 |
Article 1052 - Pleas as to the Jurisdiction of the Arbitral Tribunal
|
135 |
1. The arbitral tribunal shall have the power to decide
on its own jurisdiction. |
136 |
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. |
137 |
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. |
138 |
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. |
139 |
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. |
140 |
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. |
141 |
Article 1053 - Separability of the Arbitration Clause
|
142 |
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. |
143 |
Article 1054 - Rules Applicable to the Substance of the Dispute
|
144 |
1. The arbitral tribunal shall make its award in
accordance with the rules of law. |
145 |
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. |
146 |
3. The arbitral tribunal shall decide as amiable
compositeur if the parties by agreement have authorised it to do so. |
147 |
4. In all cases the arbitral tribunal shall take into
account any applicable trade usages. |
148 |
Article 1055 - Enforceability of Award Notwithstanding Arbitral
Appeal
|
149 |
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. |
150 |
Article 1056 - Penalty for Non-Compliance
|
151 |
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 611 i inclusive shall apply accordingly, although in the
cases mentioned in article 611 d, an application for the revocation,
suspension or reduction of the penalty shall be made to the President of the
District Court with whose Registry the original of the award shall be
deposited in accordance with article 1058(1). |
152 |
Article 1057 - Majority Decision; Refusal of Minority to Sign; Form
and Contents of Award
|
153 |
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. |
154 |
2. The award shall be in writing and signed by the
arbitrator or arbitrators. |
155 |
3. If a minority of the arbitrators refuses to sign,
the other arbitrators shall make mention 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. |
156 |
4. In addition to the decision, the award shall contain
in any case: |
157 |
(a) the names and addresses of the arbitrator or
arbitrators; |
158 |
(b) the names and addresses of the parties; |
159 |
(c) the date on which the award is made; |
160 |
(d) the place where the award is made; |
161 |
(e) the reasons for the decision, unless the award
concerns merely the determination 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. |
162 |
Article 1058 - Notification and Deposit of Award; Termination of
Mandate of Arbitral Tribunal
|
163 |
1. The arbitral tribunal shall ensure that without
delay: |
164 |
(a) a copy of any award, signed by an arbitrator or the
secretary of the arbitral tribunal, is communicated to the parties; |
165 |
(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. |
166 |
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. |
167 |
Article 1059 - Res Judicata of the Award
|
168 |
1. Only a final or partial final arbitral award is
capable of acquiring the force of res judicata. The award shall have such
force from the day on which it is made. |
169 |
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. |
170 |
Article 1060 - Rectification and Correction of the Award
|
171 |
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 in
writing that the arbitral tribunal rectify in the award a manifest computing
or clerical error. |
172 |
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. |
173 |
3. A copy of the request mentioned in paragraph (1) or
(2) above shall be communicated by the arbitral tribunal to the other party. |
174 |
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. |
175 |
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) to (3) inclusive and 1058(1) shall apply accordingly. |
176 |
6. If the arbitral tribunal rejects the request for
rectification or correction, it shall inform the parties thereof in writing. |
177 |
7. A request under this Article does not suspend the
enforcement or setting aside of the award unless the President or the
District Court deems that there are serious reasons for so doing while a
decision on the request is pending. |
178 |
Article 1061 - Additional Award
|
179 |
1. If the arbitral tribunal has failed to decide on one
or more matters which have 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. |
180 |
2. A copy of the request shall be communicated by the
arbitral tribunal to the other party. |
181 |
3. The arbitral tribunal shall give the parties an
opportunity to be heard before deciding on the request. |
182 |
4. An additional award shall be regarded as an arbitral
award to which the provisions of Section Three to Five inclusive of this
Title shall be applicable. |
183 |
5. If the arbitral tribunal rejects a request for an
additional award, it shall inform the 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). |
184 |
6. If an appeal to a second arbitral tribunal has been
agreed, the arbitral award 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. |
185 |
Section Four. - Enforcement of the
Arbitral Award
|
186 |
Article 1062 - Granting Leave for Enforcement
|
187 |
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 provisionally enforceable, or a final or
partial award rendered on arbitral appeal, can take place only after the
President 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 leave for enforcement. |
188 |
2. Leave for enforcement shall be recorded 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 Court Clerk shall
communicate without delay to the parties a certified copy of the arbitral
award on which leave for enforcement is recorded or a certified copy of the
decision in which leave for enforcement is granted. |
189 |
3. If an appeal can be lodged from the award to a
second arbitral tribunal, leave for enforcement of an award rendered at first
instance which is not declared provisionally 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. |
190 |
4. If the President of the District Court grants leave
for enforcement, the means of recourse mentioned in article 1064(1) shall be
the only means of recourse available to the respondent. The setting aside or
the revocation of an arbitral award causes by operation of law the annulment
of any leave for enforcement. |
191 |
Article 1063 - Refusal of Leave for Enforcement
|
192 |
1. Enforcement of an arbitral award may be refused by
the President 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. |
193 |
2. The Court Clerk shall without delay send to the
parties a certified copy of the President's decision to refuse leave for
enforcement. |
194 |
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. |
195 |
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. |
196 |
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. |
197 |
Section Five. - Setting Aside and
Revocation of the Arbitral Award
|
198 |
Article 1064 - Setting Aside in General
|
199 |
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 setting aside or revocation in accordance with this
Section. |
200 |
2. An application for setting aside shall be made to
the District Court with whose Registry the original of the award shall be
deposited by virtue of article 1058(1). |
201 |
3. An application for setting aside 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 setting aside within three months
after the said service, irrespective of whether the period of three months
mentioned in the preceding sentence has lapsed. |
202 |
4. An application to set aside an interim arbitral
award may be made only in conjunction with an application for setting aside a
final or partial final award. |
203 |
5. All grounds for setting aside shall, on pain of
being barred, be mentioned in the writ of summons. |
204 |
Article 1065 - Grounds for Setting Aside
|
205 |
1. Setting aside of the award can take place only on
one or more of the following grounds: |
206 |
(a) absence of a valid arbitration agreement; |
207 |
(b) the arbitral tribunal was constituted in violation
of the rules applicable thereto; |
208 |
(c) the arbitral tribunal has not complied with its
mandate; |
209 |
(d) the award is not signed or does not contain reasons
in accordance with the provisions of article 1057; |
210 |
(e) the award, or the manner in which it was made,
violates public policy or good morals. |
211 |
2. The ground mentioned in paragraph (1)( a ) above
shall not constitute a ground for setting aside in the case mentioned in
article 1052(2). |
212 |
3. The ground mentioned in paragraph (1)(b ) above
shall not constitute a ground for setting aside in the cases mentioned in
article 1052(3). |
213 |
4. The ground mentioned in paragraph (1)(c ) above
shall not constitute a ground for setting aside 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. |
214 |
5. If the arbitral tribunal has awarded in excess of,
or differently from, what was claimed, the arbitral award shall be partially
set aside 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. |
215 |
6. If and to the extent that the arbitral tribunal has
failed to decide one or more matters submitted to it, the application for
setting aside 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. |
216 |
7. Notwithstanding the provisions of the second
sentence of article 1064(3), the time limit for making an application for setting
aside 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. |
217 |
Article 1066 - Suspension of Enforcement
|
218 |
1. An application for setting aside shall not suspend
the enforcement of the award. |
219 |
2. However, the court which decides on an application
for setting aside 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 setting aside. |
220 |
3. A copy of the request for suspension shall be
communicated by the Court Clerk to the other party without delay. |
221 |
4. The court shall decide on the request after the
other party has been given an opportunity to be heard. |
222 |
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. |
223 |
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. |
224 |
Article 1067 - Consequences of Setting Aside
|
225 |
Unless the parties have agreed otherwise, as soon as a
decision setting aside the award has become final, the jurisdiction of the
court shall revive. |
226 |
Article 1068 - Revocation of the Award in Case of Fraud, Forgery or
New Documents *
|
227 |
1. Revocation of the award can take place only on one
or more of the following grounds: |
228 |
(a) the award is wholly 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; |
229 |
(b) the award is wholly or partially based on documents
which, after the award is made, are discovered to have been forged; |
230 |
(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. |
231 |
2. An application for revocation shall be brought
before the Court of Appeal which would have had jurisdiction to decide on an
appeal relating to the application for setting aside mentioned in article
1064, within three months after the fraud or forgery has become known or the
party has obtained the new documents. The provisions of Articles 1066 and
1067 shall apply accordingly. |
232 |
3. Subject to the provisions of the preceding
paragraphs, the provisions of the Articles of Book One, Title Ten, shall
apply accordingly. |
233 |
Section Six. - Arbitral Award on
Agreed Terms
|
234 |
Article 1069
|
235 |
1. If during the arbitral proceedings the parties reach
a settlement, the arbitral tribunal may, at the joint request of the parties,
record the contents of the settlement in the form of an arbitral award. The
arbitral tribunal may refuse the request without giving reasons. |
236 |
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: |
237 |
(a) the award may be set aside only on the ground that
it is contrary to public policy or good morals, |
238 |
(b) notwithstanding the provisions of article 1057, the
award does not need to contain reasons, and |
239 |
(c) the award is also signed by the parties. |
240 |
Section Seven. - Final Provisions
|
241 |
Article 1070 - No Appeal Against Certain Decisions of President of
District Court
|
242 |
No appeal may be lodged against the decisions of the
President of the District Court mentioned in Sections One to Three inclusive
of this Title. |
243 |
Article 1071 - No Attorney Required for Certain Requests
|
244 |
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. |
245 |
Article 1072 - Agreement on Competent President of District Court in
Certain Cases
|
246 |
The parties may designate by agreement the President of
a specific District Court as the President 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). |
247 |
Article 1073 - Applicability of Title One to Arbitration Within The
Netherlands; Appointment of Arbitrators in Case Place of Arbitration is
Unknown
|
248 |
1. The provisions of this Title shall apply if the
place of arbitration is situated within the Netherlands. |
249 |
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. |
250 |
Title
Two: - Arbitration Outside The Netherlands
|
251 |
Article 1074 - Foreign Arbitration Agreement and Substantive Claim
Before Dutch Court; Foreign Arbitration Agreement and Interim Measures by
Dutch Court
|
252 |
1. A court in the Netherlands seized of a dispute in
respect of which an arbitration agreement has been concluded under which
arbitration shall take place outside the Netherlands 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 under the law
applicable thereto. |
253 |
2. The agreement mentioned in paragraph (1) shall not
preclude a party from requesting a court in the Netherlands to grant interim
measures of protection, or from applying to the President of the District
Court for a decision in summary proceedings in accordance with the provisions
of article 289. |
254 |
Article 1075 - Recognition and Enforcement of Foreign Award Under
Treaties
|
255 |
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 President 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. |
256 |
Article 1076 - Recognition and Enforcement of Foreign Award Without
Treaties
|
257 |
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: |
258 |
(A) the party against whom recognition or enforcement
is sought, asserts and proves that: |
259 |
(a) a valid arbitration agreement under the law
applicable thereto is lacking; |
260 |
(b) the arbitral tribunal is constituted in violation
of the rules applicable thereto; |
261 |
(c) the arbitral tribunal has not complied with its
mandate; |
262 |
(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; |
263 |
(e) the arbitral award has been set aside by a
competent authority of the country in which that award is made; |
264 |
(B) the court finds that the recognition or enforcement
would be contrary to public policy. |
265 |
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. |
266 |
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. |
267 |
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. |
268 |
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. |
269 |
6. The provisions of Articles 985 to 991 inclusive
shall apply accordingly, provided that the President 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. |
270 |
7. If an application for the setting aside 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. |
271 |
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