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Proceedings on the merits before the Arbitration Board

Marco Guit
Marco Guit
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When initiating proceedings on the merits, the claimant has to submit a Statement of Claim, following which the other party is given a period (for which a postponement is possible) to set out his defence in a Statement of Defence. Subsequently, the parties are often invited to appear at an ‘oral hearing’. The Board may also decide to have an additional written round before concluding whether an oral hearing will have to take place. An oral hearing is attended by the arbitrators and the parties; together they deal with the dispute. This is therefore comparable to a personal appearance (hearing) at the court. Usually, a meeting space close to the location of the work is chosen, so the arbitrators will be able to inspect the work together with the parties, if so desired.

Oral hearing

An oral hearing may sometimes take a whole day, as arbitrators often deal with each separate point of dispute. It also regularly happens that a settlement is sought, for which arbitrators can be requested to indicate a direction by sharing their preliminary opinion with the parties. After the oral hearing, the arbitral award is drafted, and this is usually issued within a period of 8–12 weeks.

Expedited proceedings on the merits

Proceedings on the merits before the Board may take a lot of time. If it is impossible to wait for the outcome of regular proceedings, expedited proceedings may be requested. The president assesses whether the case is eligible for this. If it is, the dispute will be given urgency. What exactly this means depends on the degree of urgency, but the case will be scheduled for an oral hearing sooner. In this way, the Board of Arbitration addresses everyday practice in which a quick judgment is needed sometimes, because failing this, the risks for (one of) the parties may increase disproportionally. For example, it may be very complex to know whether or not a change has been made to the contract documents, but the financial consequences of the judgment in this regard are substantial in case of major works.

Arbitration in preliminary relief proceedings

Arbitration in preliminary relief proceedings can be compared to the preliminary relief proceedings before the ordinary court. There must be a situation that necessitates instant relief, for example an emergency repair to a work. The judgment in preliminary relief proceedings is provisional, and the arbitrator may derogate from this judgment in proceedings on the merits.

Statement of defence in preliminary relief proceedings

The terms are considerably shorter. Preliminary relief proceedings are also initiated by submitting a Statement of Claim. Sometimes, the other party will not have sufficient time to submit a Statement of Defence before the preliminary relief proceedings are dealt with at an oral hearing. It therefore often happens that the Statement of Defence is presented at the oral hearing. The arbitral award is issued as soon as possible.

Appeal against an arbitral award

In principle, an appeal against an arbitral award at first instance is possible. There are, however, some conditions for this. As with civil proceedings, an appeal limit of € 1,750 applies. This means that the amount of the claim in dispute has to exceed € 1,750. An arbitral appeal against an interim arbitral award or a partial final award can only be lodged together with an appeal against the last final award, unless the parties have agreed otherwise or the arbitrators have included the possibility of appeal in the partial final award.

Period for appeal against an arbitral award

The period within which an appeal must be brought is three months. In principle, this period starts on the date on which the arbitral award was rendered.

Appeal against an arbitral award rendered in preliminary relief proceedings

A party can lodge an appeal against an arbitral award rendered in preliminary relief proceedings. The period for this is 1 month; for the ordinary court this is four weeks.


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