On 9 December 2014, the Netherlands Arbitration Institute (“NAI“) published the NAI Arbitration Rules 2015 (“the 2015 Rules”), which will enter into force on 1 January 2015.
The changes are (mostly) the result of the New (Netherlands) Arbitration Act which will also enter into force on 1 January 2015.
Key updates include:
(a) Challenge of arbitrators
Parties in NAI arbitration proceedings may under the new rules request to challenge an arbitrator before an independent third party (for example an arbitration institute), which possibility was created by the New Arbitration Act. Under the current NAI Arbitration rules of 2010 (“the 2010 Rules“), based on the current Arbitration Act, it was only possible to challenge an arbitrator before a court in interlocutory proceedings. This new possibility may contain nothing new in an international context, but it does represent a new development in the Netherlands.
(b) Consolidation of arbitral proceedings
Parties can request to consolidate arbitral proceedings with other arbitral proceedings (either in the Netherlands or abroad), provided that the 2015 Rules are applicable to both arbitral proceedings. A requirement for consolidation is furthermore that the proceedings are so closely connected that a proper administration of justice requires that the proceedings are heard together.
(c) Referral during an annulment proceedings
The New Arbitration Act will introduce the possibility for a Dutch Court of Appeal to stay any annulment proceedings and refer the case back to the arbitral tribunal in order to allow this tribunal to revise the award itself by reopening the arbitral proceedings or taking other measures. This possibility has also been included in the 2015 Rules.
The 2015 Rules determine that the rules shall apply in the form as they are in force at the time the arbitration is commenced. This means that if the arbitral proceedings are commenced after 1 January 2015, the 2015 Rules shall (generally) apply. There are however a few exceptions. The new article on consolidation of arbitral proceedings, the article that provides that the arbitral tribunal decides in accordance with the rules of law and the article that provides that it is noted in case a minority of the arbitral tribunal refuse to sign the award shall only apply to arbitral agreements entered into on or after 1 January 2015 and if these arbitral agreements refer to the NAI Rules. On arbitral agreements entered into before 1 January 2015 the “old” article (of the 2010 Rules) shall apply in relation to these three exceptions.
For further questions please contact Manon Cordewener, Carlijn van Rest or Sanne Bouwers.