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NAI Newsletter August 2016

Summary Annual Report 2015 of the Netherlands Arbitration Institute

Would you like to know more about the NAI? The NAI’s Summary Annual Report for 2015 is now available and includes information about the number of arbitrations, the number of cases settled the same year and the types of cases.

 

NAI becomes independent authority for healthcare contracting disputes

On Thursday 2 June 2016, various professional and trade associations in the healthcare sector signed an agreement establishing an independent authority for the resolution and settlement of healthcare contracting disputes (“Onafhankelijke Geschilleninstantie voor Geschillenoplossing en –beslechting Zorgcontractering”). The signatories subsequently presented the agreement to Minister Schippers (Health, Welfare and Sports). The implementation of the dispute authority has been assigned to the Netherlands Arbitration Institute (NAI).

Any disputes arising in respect of the conclusion of or compliance with healthcare contracts between healthcare insurers and healthcare providers may be submitted to mediators, binding advisors or arbitrators to be appointed by the NAI. The initial focus will be on handling healthcare contracting disputes under the Healthcare Insurance Act and additional contracted healthcare. As of 1 April 2017, healthcare contracting disputes under the Long-Term Care Act may also be submitted.

The NAI can offer parties seeking to resolve or settle a dispute an easily accessible and effective alternative to civil court proceedings. The resolution and/or settlement of a dispute may take place via mediation, binding advice or arbitration. In principle, the parties choose one of these methods once the dispute has arisen. The NAI administers the proceedings in accordance with the NAI Rules. Together with representatives of the professional and trade associations, the NAI has developed models that the parties may use to request mediation, binding advice or arbitration. These models are available on the websites of the associated organisations. 

 

NAI and NAI Young Arbitration Practitioners (NAI Jong Oranje) end-of-year meeting – save the date!

The end-of-year meeting for all ages will take place on 8 December 2016. The speakers, theme and venue will be announced as soon as possible.

 

NAI Basic Courses – 10 and 13 October 2016

The Basic Course explaining the basics of arbitration under the NAI Arbitration Rules of 1 January 2015 will be held twice in the near future: on Monday 10 October 2016 and Thursday 13 October 2016. Everyone whose practice currently involves arbitration, or may do so in the future, whether lawyer, technical or financial expert or otherwise, is welcome to attend. Please click on a date to register.

 

In practice – amiable compositeur or rules of law

It is evident that some confusion exists in practice about the measure for decision-making to be applied by arbitrators. As the application of the wrong measure could result in an award being set aside, it constitutes an important element of the award, which is why we are devoting extra attention to the subject here.

Article 42 of the NAI Arbitration Rules of 1 January 2015 provides that the arbitral tribunal shall decide in accordance with the rules of law, unless the parties have agreed that it shall decide as amiable compositeur. This aligns with the legal provision at Article 1054 of the Dutch Code of Civil Procedure. So far, so good. However, arbitrators sometimes lose sight of Article 62(3) of the NAI Arbitration Rules, which provides that Article 42(1) shall only apply to arbitration agreements concluded on or after 1 January 2015, unless the parties have agreed otherwise. Arbitration agreements concluded before 1 January 2015 are still governed by Article 45 in conjunction with Article 1(g) of the NAI Arbitration Rules of 1 January 2010. Pursuant to these provisions, the arbitrators shall decide as amiable compositeurs, unless the parties have agreed that the arbitrators shall decide according to the rules of law. Hence, precisely the reverse.

Arbitrators and parties need to bear this distinction in mind to prevent awards from being set aside due to the application of an incorrect measure for decision-making.

 

This publication is for general information purposes only. No rights may be derived from its contents.