This year you will regularly receive a NAI Newsletter in your mailbox. In December 2012, you may already have received a sneak preview. You are now reading the first official NAI newsletter. We hope to keep you informed concerning current matters in the field of arbitration, such as future developments in the revision of the arbitration law. Furthermore, the NAI provides trainings, lectures and meetings of NAI Jong Oranje in the context of promoting arbitration in general. In order to best respond to your needs, the NAI would gladly receive your suggestions about the content of the newsletter.
The NAI Secretariat hopes this year for a pleasant collaboration and wishes you a wonderful 2013!
2. Report NAI Young and a little older Oranje dated December 13, 2012
On 13 December 2012, the annual meeting of NAI Young and a little older Oranje took place. NautaDutilh was so hospitable to make a room available in Amsterdam, as well as to offer a welcome drink and drinks afterwards.
Gerard Meijer welcomed the guests on behalf of NautaDutilh; Bas van Zelst had the same honour on behalf of the workgroup for “NAI Jong Oranje”.
The speaker of the evening, Daan Asser, said that he was “awakened from sleep mode.” During the time that he was Counsellor of the Supreme Court, he did not act as arbitrator. This did not prevent him speaking about “The arbitrator as judge between the parties”. During the lecture he spoke about the legal relationship between arbitrators and parties. Here he made a comparison between the role of the arbitrator in relation to the parties and the role of the judge with respect to parties. In contrast to a court procedure, in arbitration the parties can largely organize the procedure as they wish. Parties can jointly draft the procedural order and the arbitrator must comply, according to Daan Asser. This is due to the fact that the parties and arbitrator have closed a mutual agreement and the arbitrator is paid directly by the parties. This also implies that the relationship between an arbitrator with respect to the parties is different from that of a judge. For example an arbitrator has less coercive means at its disposal. According to Daan Asser this makes the arbitrator “toothless”. However, Arbitration Rules offer clear guidelines for both arbitrators and parties, which should provide the arbitrator with some more teeth.
Also, the independence and impartiality of the arbitrator was discussed. In the state court, the judge can decide behind closed doors whether he can handle a case or whether his independence and impartiality cannot be guaranteed. However, arbitrators are given the opportunity prior to their appointment for any matters that may cause doubt about his independence and impartiality to be submitted to the parties. Also during the procedure the arbitrators should disclose possible involvement. Parties may then decide whether there is a reason to challenge an arbitrator.
Challenging can also be used as a weapon. This may lead to the respective arbitrator, yet also judge, being less unprejudiced in relation to the challenging party. According to Daan Asser this causes the initial warranty of the challenge – guaranteeing the objectivity of the arbitrator/judge in relation to the parties – to be undermined. Moreover, if the challenge is unfounded and the arbitrator or judge does not withdraw, the challenge could still continue to work into the judgment.
The discussion that arose at the end of the lecture revealed that ultimately among other things, there can be different views on the role of the arbitrator in determining the procedural order.
Before the very successful drinks started, Fredy von Hombracht-Brinkman thanked the speaker and host. She also announced that the Bar Association will continue to recognize the NAI as a training institute, so that for the NAI arbitrator training PO points may be given and she announced that the NAI newsletter will be sent, for which input is always welcome.
3. Amended NAI administration costs
Since 2001, the administration costs associated with financial interests between € 50,000.- and € 5,000,000.- have not changed. On 1 January 2013, this was amended. This link will take you to the new administration costs.
4. Amended Registry costs
As of 1 January 2013, the registry fee for depositing an arbitral award has increased from € 114.- to € 117.-.
5. NAI training
In 2013, the Basic Course for arbitrators will be opened to all lawyers. After attending this course, PO points will be given, now that the NAI is a recognized training institute. The next course will be given on February 13, 2013. The costs are € 495.= (VAT excluded). For the sake of completeness, it should be noted that NAI arbitrators will be given priority. To register fill in the registration form.
13 February 2013: NAI Basic Course, Rotterdam, at the offices of the NAI from 9:45 h. to 17:10 h. (course will be in the Dutch language).
12 December 2013: End of Year meeting NAI – NAI Jong Oranje. Location, time and speaker will be published in due course.
7. Practical examples
Arbitration commences by filing a request for arbitration. Under the pretext of ‘well begun is half done’ follow some points here below.
A request for arbitration can be handled quickly if all required data is provided (correctly). A registration form can be used for this. The NAI Secretariat often receives requests for arbitration where for example no or incorrect contact details are listed, attachments are missing or are not drafted in the correct language.
The request for arbitration should contain the information as listed in Article 6, paragraph 3, of the NAI Arbitration Rules (can be requested via this form).
Furthermore, the Secretariat would like to receive a copy of the entire agreement between parties containing the arbitration clause. If parties have already agreed on the language and this has been confirmed, then the NAI should receive the request for arbitration in that particular language.
Finally, it can often be more practical, when filing a request, to already indicate the possible preference of parties to the number of arbitrators and specific capacity of arbitrators. The defendant may submit its views in the short answer. Then a list of arbitrators will be sent as soon as possible, or other method of appointment as agreed upon between the parties will proceed.