Arbitration versus litigation an assessment of pros and

Arbitration versus litigation: an assessment of pros and cons against the proposed new Dutch arbitration law Evelyn Tjon-En-Fa Arbitration seminar 15 October 2013

Table of contents 1. First stages of Dispute Resolution 2. Follow-up in Dispute Resolution: Arbitration or Litigation? 3. Will there be a shift of balance between Arbitration and Litigation under the legislative proposal on the modernisation of Dutch arbitration law? 4. Closing remarks Page 2 © Bird & Bird LLP 2013 Arbitrage

First stages of Dispute Resolution

Typical escalation & dispute resolution options ● Typical scenario in B 2 B contracts: • Stage 1 - Internal escalation by the Parties • Stage 2 – ADR, usually Mediation • [Stage 3 –Expert determination] • Stage 4 – Arbitration or Litigation ● Various combinations and alternatives possible ● Chosen option to be reflected in workable escalation and dispute resolution clauses. • When drafting, consider carefully whether cumulating stages 2 and 4 is practical Page 4 © Bird & Bird LLP 2013 Arbitrage

Internal escalation – common problems ● Agreed tight timetable can be unworkable in practice ● Parts or even all of the contractual escalation process may already have been used informally ● Need to brief Managing Directors, CEO's or nominated Senior Representatives ● Consider recording agreed resolution formally in: • Settlement Agreement in authentic deed ("notariële akte"): execution possible Page 5 © Bird & Bird LLP 2013 Arbitrage

Mediation/ADR ● Settle disputes with assistance of a neutral third party (mediator) ● Facilitative mediation is most common type ● Consensual and non-binding (unless settlement is achieved) ● Private, informal and confidential (without prejudice privilege applies) Page 6 © Bird & Bird LLP 2013 Arbitrage

Follow-up stage of Dispute Resolution: Arbitration or Litigation ?

Arbitration or Litigation? ● PWC 2013 International Arbitration Survey: • Arbitration continues to be more popular than any of the other options available (identical to previous surveys in 2006 and 2009); • Arbitration ranked first, more often than any of the other mechanisms (52% of respondents marked arbitration as most preferred) ● Key questions: • is the majority always right, and how would the outcome of a survey in the Netherlands look like? • Will the proposed new Dutch arbitration law make arbitration (even) more popular? Page 8 © Bird & Bird LLP 2013 Arbitrage

Common reasons to favour Arbitration over Litigation ● Neutrality: generally avoids exposure to (presumed) ‘unfriendly’ courts ● Confidentiality: parties can agree upon total confidentiality • no longer included in proposed new arbitration law, but common practice; e. g. NAI rules ● Freedom of choice, complexity: option to choose/select arbitrators, often with a specific expertise ● Procedural flexibility ● International: enforceability under New York Convention (countries such as China and the US) Page 9 © Bird & Bird LLP 2013 Arbitrage

Typical drawbacks of Arbitration / possible reasons for Litigation ● Arbitration (including annulment proceedings) is not necessarily quick ● Interim measures often not easily obtainable ● Arbitration tends to be more costly than Litigation • Arbitration can be extra costly if necessary to seek assistance of domestic courts (annulment proceedings, enforcement, provisional measures) ● "Arbitrators do not take clear-cut decisions, they tend to 'split the baby'" ● Lack of an appeals mechanism (unless agreed upon/institutionalised) ● Lack of publicity and precedents (if desired) ● Enforcement of 'national' arbitration award: exequatur still required Page 10 © Bird & Bird LLP 2013 Arbitrage

Will there be a shift of balance between Arbitration and Litigation? A comparison with a view to the proposed new Dutch Arbitration law

Background and main goals • Current Dutch arbitration law stems from 1986 − Codification of most important case law at the time − Loosely based on UNCITRAL Model Law 1985 • Reason for proposed new Arbitration Law ü General goal: make Arbitration a more attractive alternative to Litigation (international: leading arbitration country); lean more heavily on UNCITRAL ü Specific goals: • modernisation (e. g. introduction of contemporary means of communication) • codification of best practices • reduce financial burden to the parties • simplify annulment proceedings • increase confidence of consumers in arbitration Page 12 © Bird & Bird LLP 2013 Arbitrage

Important proposed amendments 1. More directory law, more modern means of communication 2. Limitation of the length of annulment proceedings 3. Option for remission ("terugverwijzing") in annulment proceedings 4. Introduction of provisional measures in pending arbitration proceedings ("voorlopige voorzieningen") 5. B 2 C arbitration clauses 6. Miscellaneous Page 13 © Bird & Bird LLP 2013 Arbitrage

1. More directory law & modern means (I) • More options to derogate from legal provisions by contract or by choosing an arbitration institute with corresponding rules Ø Examples: − − Number of written briefs to be submitted? (art. 1038 a CCP) Oral presentation? (art. 1038 b CCP) Arrangements on the submission of evidence? (art. 1039 -1042 a CCP) Appeal in cassation in annulment proceedings? (art. 1064 a CCP) • Facilitate electronic communication, if the parties agree (art. 1072 b CCP) • Video conferencing, electronic arbitral award Page 14 © Bird & Bird LLP 2013 Arbitrage

1. More directory law & modern means (II) How will Litigation compare to these new features? • No equivalent to art. 1038 a CCP (number of written briefs to be submitted) and art. 1038 b CCP (oral presentation) in CCP Ø Art. 1. 4 Landelijk procesreglement: parties are bound by the procedures and terms of litigation as provided in these regulations, unless the court allows a deviating manner of conducting a case on their unanimous request that is made prior to the first docket date • Art. 149 -207 CCP (evidence); art. 153 CCP: 'bewijsovereenkomsten' • Arbitration will definitely be ahead of Litigation regarding electronic communication • Art. 33 CCP provides a limited basis (electronic submission of documents), but hitherto only used in patent cases; • No electronic judgments or hearings via videoconferencing Page 15 © Bird & Bird LLP 2013 Arbitrage

2. Limitation of duration annulment proceedings (I) Amendments in annulment proceedings before the State Courts • Current: two fact-finding instances and no explicit option to exclude appeal in cassation at the Hoge Raad • New: Court of Appeal instead of District Court (article 1064 a CCP) as: o first and only fact-finding instance ('feitelijke instantie') instead of 2 (saves both time and money, but some are critical) o option for appeal in cassation at the Hoge Raad, unless excluded by the parties Page 16 © Bird & Bird LLP 2013 Arbitrage

2. Limitation of the length of annulment proceedings (II) How do these new rules compare to the length of Litigation? • Current number of instances: o Arbitration: 1 (or 2, if appeal is agreed upon) plus 3 instances (annulment proceedings; option of 'prorogatie'/'sprongcassatie': art. 96 and 329 CCP) o Litigation: 3 instances (option of 'prorogatie'/'sprongcassatie' • New number of instances: o Arbitration; 1 (or 2) plus 1 or 2 (annulment proceedings; option of 'prorogatie'/'sprongcassatie') o Litigation: no changes Page 17 © Bird & Bird LLP 2013 Arbitrage

2. Limitation of the length of annulment proceedings (III) Current • Obligation to deposit the arbitral award with the registry ("griffie") of the District Court (art. 1058 CCP) • Date on which the arbitral award is deposited is the trigger for the periods for annulment proceedings, revocation and enforcement (art. 1060 -1062 / 1064 CCP) New • No obligation to deposit the arbitral award with the registry (art. 1058 /1064 a par. 2 CCP), unless parties agree otherwise (in alignment with international arbitration practice) • Date on which the arbitral award is sent will become the trigger for the periods for setting aside, revocation and enforcement No equivalent in Litigation Page 18 © Bird & Bird LLP 2013 Arbitrage

3. Remission in annulment proceedings • Current: no remission ('terugverwijzing') option in annulment proceedings • New: Court of Appeal may suspend annulment proceedings for remission of the case to arbitral tribunal (art. 1065 a CCP) o At the request of a party / on the Court of Appeal's own motion • decission to remit is not subject to appeal) o Arbitral tribunal can nullify ("ongedaanmaken") the ground for annulment / take any other measure it deems appropriate • Obviously no equivalent in Litigation, but: o Cf. ground for cassation in single-instance proceedings (e. g. 'ontbindingsprocedures'; art. 7: 685 CCP) o Cf. issue of remission or 'evocatie' to the court of first instance in interim appeals Page 19 © Bird & Bird LLP 2013 Arbitrage

4. Provisional measures in pending arbitration proceedings (I) Current: • authority for emergency arbitrators to order provisional measures in separate proceedings ("arbitraal kort geding"), if agreed upon (art. 1051 CCP) New: • authority for arbitral tribunal to order certain provisional measures in pending arbitral proceedings on the merits, unless otherwise agreed by parties (art. 1043 b CCP) o only for the duration of the arbitral proceedings o Conservatory measures (e. g. conservatoir beslag) are still not included: state court o Award will be qualitied as an arbitral award, but it remains to be seen how foreign courts will see this under the New York Convention Page 20 © Bird & Bird LLP 2013 Arbitrage

4. Provisional measures in pending arbitration proceedings (II) How will these new rules compare to Litigation? • More similarity between Arbitration and Litigation • Authority for judge in interim proceedings (voorzieningenrechter) to order provisional measures in separate proceedings (kort geding) (art. 254 -260 CCP) • Cf arbitraal kort geding • Authority for judge to order certain provisional measures (including conservatory measures) in pending proceedings on the merits (art. 223 CCP); provisionele voorziening • Cf voorlopige voorziening in arbitraal geding Page 21 © Bird & Bird LLP 2013 Arbitrage

5. Arbitration in B 2 C contracts (I) • Current: Hoge Raad: ECJ case law and "alle relevante omstandigheden van het geval" (art. 6: 233 DCC) o Consumer protection (cf EU Directive 93/13 EEG) • New: art. 6: 236 subsection n DCC will be amended: o as a rule: onreasonably onerous ("onredelijk bezwarend"/ zwarte lijst) o Arbitration in B 2 C: • • after a dispute has arisen: by separate arbitration agreement general conditions: 30 day-period for consumer to opt for the competent state court instead of arbitration Page 22 © Bird & Bird LLP 2013 Arbitrage

5. Arbitration in B 2 C contracts (II) Will this proposed amendment have the intended effect? • Purpose of amendment: increase confidence of consumers in arbitration. However: • Will consumers actually opt for competent state court instead of arbitration in case of a dispute within a 30 day-period? Page 23 © Bird & Bird LLP 2013 Arbitrage

6. Miscellaneous amendments (I) • Option for institutional challenge proceedings ('wraking') by an 'independent third party' instead of by the judge in interim proceedings (art. 1035 subsection 7 CCP) • State court rules art. 36 -41 CCP: three-judge section • Finality of awards ('gezag van gewijsde': art. 1059 CCP) • New act will be in alignment with state court rules and refers to art. 236 CCP); • Enforcement of arbitral award ('exequatur': art. 1062/1063 CCP) • • New: place of arbitration; also for interim awards Appeal was and will be excluded Page 24 © Bird & Bird LLP 2013 Arbitrage

6. Miscellaneous (II) • Annulment proceedings (art. 1065 CCP): o If a ground for annulment only concerns a part of the award, the remaining part will not be set aside to the extent that it does not form an integral part of the award; o Requirement of a 'reasonable interest' (Memorie van Toelichting, p. 39); and o The grounds for annulment that the arbitral tribunal has not complied with the scope of the submission to arbitration ('schending van de opdracht'): not if the non-compliance is not serious ('niet van ernstige aard') Page 25 © Bird & Bird LLP 2013 Arbitrage

Some closing remarks

Closing remarks • Arbitration proceedings will have options & checks/balances similar to those in state court proceedings • Less fundamental procedural drawbacks (e. g. regarding interim relief) • Some new advantages over Litigation: o Electronic communication means o International disputes: Annet van Hooft • Choice for Arbitration or Litigation will still largely depend on: o Litigation venue / enforceability o Importance of privacy /publicity/ precedents o Subject matter (specific expertise required) Page 27 © Bird & Bird LLP 2013 Arbitrage

Thank you Evelyn Tjon-En-Fa Evelyn. tjon-en-fa@twobirds. com 00 -31 -70 -3538858 Bird & Bird is an international legal practice comprising Bird & Bird LLP and its affiliated and associated businesses. Bird & Bird LLP is a limited liability partnership, registered in England Wales with registered number OC 340318 and is authorised and regulated by the Solicitors Regulation Authority. Its registered office and principal place of business is at 15 Fetter Lane, London EC 4 A 1 JP. A list of members of Bird & Bird LLP and of any non-members who are designated as partners, and of their respective professional qualifications, is open to inspection at that address. twobirds. com