Contributed By Florent (Amsterdam - HQ)
Arbitrations and mediations occur in restructuring, liquidation, insolvency and bankruptcy matters if this is agreed between the parties. As a rule, a court-appointed bankruptcy trustee is bound by pre-insolvency agreements, including clauses with regard to choice of forum, arbitration or mediation. Parties in the Netherlands are generally open to arbitration and mediation.
Pre-insolvency disputes are often still brought before the court, although there is a rising trend for mediations in bankruptcies in an attempt to avoid prolonged legal action, often at the instigation of a supervisory judge in a bankruptcy matter.
It is not customary for courts in the Netherlands to order mandatory arbitration or mediation in a judicially supervised insolvency or restructuring proceeding.
In principle, a court-appointed bankruptcy trustee is bound by pre-insolvency agreements, including arbitral clauses.
The Dutch Civil Code contains several provisions governing arbitrations, besides the rules of arbitration usually applied by the relevant arbitration institute. There are no formal statutes that govern mediations. In Dutch insolvency proceedings, alternative dispute resolution does not play any role of significance; the Dutch Bankruptcy Act itself does not provide for it as a means of solving disputes in the context of bankruptcy or suspension of payments. Whether the Act allows for the same is questionable in varying degrees. In principle, where it concerns a legal relationship that can be determined solely by the parties, those parties may, under Dutch law, choose extrajudicial/alternative dispute resolution, such as arbitration or mediation. If an arbitration clause has been agreed, the civil courts will, in principle, deny jurisdiction. However, if and to what extent an existing agreement between an insolvent debtor and a counterparty is applicable in insolvency proceedings – ie, to, among other things, the submission of the claim to the estate, if the bankruptcy trustee, administrator, debtor or another creditor would dispute the claim, or if the bankruptcy trustee claims against the counterparty of the insolvent debtor in connection with an agreement that contains an arbitration clause – is unsure. It is argued that an arbitration that is pending when the debtor is declared insolvent will be postponed just like civil proceedings, and continued with the bankruptcy trustee and/or opposing other creditor or the insolvent debtor if the relevant claim is disputed on submission to the estate. The same case is made, but more uncertain, as to whether those parties would be bound to arbitration with respect to disputing a submitted claim.
The provisions in the Dutch Code of Civil Procedure governing arbitrations that take place in the Netherlands are mostly of a regulatory nature and not a mandatory nature. Hence, the manner in which arbitrators/mediators are appointed depends on the applicable rules of arbitration and/or agreements between parties; the same applies for the question of who can serve as an arbitrator/mediator.