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NAI Newsletter - December 2012  
Welcome to the first edition of the NAI newsletter

You are reading the inaugural version of the e-newsletter of the Netherlands Arbitration Institute. As of 2013 we will periodically inform you through this newsletter on developments regarding the NAI and arbitration in The Netherlands. The NAI secretariat is editing this newsletter. Please feel free to submit any suggestions, comments or news to secretariaat@nai-nl.org.

Now the year end is approaching a short review on the most important developments of the past year seems appropriate. The NAI administration team has streamlined its operations by further integrating the financial and case-administration and working with fixed case-handling teams. The number of new arbitrations stays a bit behind 2011; until this date 101 new arbitrations were filed.

Early this year the NAI was invited to advise the Minister of Security and Justice on the draft proposal for amendment of the Arbitration Act. During a conference of NAI arbitrators in Amsterdam on 23 May 2012, the proposal was discussed under the guidance of Professor Henk Snijders in the presence of government representatives. The NAI sent its comments to the Minister of Security and Justice on 31 July 2012. The NAI asked at that occasion specific attention for amendment of the proposals regarding challenges of arbitrators, which could further improve the competitive position of The Netherlands as place of arbitration. Further observations on the NAI comments can be read below.

The NAI administration team and its board have made substantial efforts to widely promote the merits of the NAI. Contacts were made with parties in the shipbuilding industry, the municipality of Rotterdam and the Royal Institute of Engineers. As of 1 March 2012 a new possibility exists within the NAI to have a member from a specific group of specifically trained arbitrators swiftly resolve complex divorces. On an international level a board delegation participated in the ICCA Conference in Singapore and attended the annual meeting with our Belgian sister institute Cepani.

In the past year we regretfully had to part from our honorary president Professor Piet Sanders, who, shortly after we could congratulate him on reaching his hundredth birthday, passed away on 27 September 2012. Piet Sanders was the founding father of the NAI. We are very grateful to him for sharing his deep knowledge of national and international arbitration with us and will continue to remember him as an eminent lawyer and an outstanding person.

In the coming year the NAI will commence adaption and amendment of its arbitration rules to the revised Arbitration Act, which is expected to be enforced mid 2014. In that connection a possibility to perform e-arbitration will be created in order to improve the efficiency of NAI proceedings for the parties. In view of the increased costs of administrating cases, the administration costs, which for interests between € 50.000 en € 5 million have remained unchanged since 2001, will be adapted in 2013. You will be informed thereof through this newsletter.

Finally, I wish you on behalf of all of the NAI crew a very happy Christmas and a very wonderful 2013. The NAI is confident that its new newsletter will contribute thereto.

With kind regards,

Willem van Baren
Chairman of the Board NAI





COMMENTS ON THE NAI DRAFT BILL ON THE NEW ARBITRATION ACT

By letter of 13 March 2012, the Minister of Security and Justice requested the advice of the Netherlands Arbitration Institute on the draft bill to revise the arbitration rules. At a meeting of NAI arbitrators on 23 May 2012 in Amsterdam under the leadership of Prof. Henk Snijders and in the presence of representatives of the Ministry, the draft bill was discussed. The results of this exchange of ideas are contained in the comments of the NAI, which was sent to the Minister on 31 July 2012.

The NAI expressed its wholehearted support to the Minister for the aims of the bill, the removal of barriers to the use of arbitration and the provision of high-quality dispute resolution both in regular courts and in arbitration and to improve the competitive position of the Netherlands. In this context, the NAI in particular requested attention for amendment of the proposals in respect of challenge proceedings, which could improve the competitive position of the Netherlands as the place of arbitration.

The comments relating to issues including the new quality requirement that at least one of the persons on the arbitration tribunal holds a Master of Law degree or a comparable degree in law, unless a secretary is added to the arbitration tribunal who holds such a degree (Article 1023 paragraph 2), which could lead to problems in an international context.

The proposed challenge proceedings provide for the maintenance of the jurisdiction of the judge hearing applications for provisional relief in district courts already arising under the current Article 1035 to decide on the merits of a challenge. In 2010, the NAI therefore deleted the challenge proceedings from its Rules. Internationally, the Netherlands holds a rather exceptional position. In the preliminary draft of the Van den Berg Working Group it has chosen exclusive jurisdiction of the institutional challenge proceedings in the sense that if the challenge by the third party designated by the parties is rejected as inadmissible or unfounded, the challenge can still be submitted to the preliminary relief judge of the district court, while the scope for setting aside the arbitral award remains open. That leaves plenty of scope for institutional challenge proceedings. If any doubt exists about ensuring a good balanced decision by the institutions, it could be considered to create the possibility to designate order of council institutes that are competent to decide on a challenge application. As a possible alternative the regulation in Section 24 of the English Arbitration Act could be envisaged, which provides access to the civil courts for challenge applications on specific grounds contained therein. That legislation expressly provides “If there is an arbitral or other institution or person vested by the parties with power to remove an arbitrator, the court shall not exercise its power of removal unless satisfied that the applicant has first exhausted any available recourse to that institution or person.”. The NAI advised the Minister to reconsider the proposed regulation and to create scope for institutional challenge proceedings. Similar comments were made on this point by ICC and the Netherlands Permanent Court of Arbitration.

Further comments concern the oral presentation at the hearing (Article 1038b), preliminary relief (including the extent to which Article 1043b still leaves scope for procedural orders, referral during annulment proceedings (Article 1065 a), and some textual suggestions.

A copy of the letter of 31 July 2012 from the NAI to the Minister of Security and Justice can be found here. The draft bill is available here and the explanatory memorandum here.

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