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The NAI Arbitration Rules 2024 are the arbitration rules of the Netherlands Arbitration Institute (NAI) for arbitrations commenced on or after 1 March 2024 (Article 3(2)). The main changes: expedited arbitration for claims up to €1,000,000 (Article 42), a case management conference within three weeks after the tribunal receives the file (Article 26), early determination of manifestly unfounded claims or defences (Article 45) and costs consequences for delay (Article 59(4)).
Arbitration is an alternative to litigation in the state courts, and the Netherlands Arbitration Institute (“NAI”) is one of the best-known arbitration institutes in the Netherlands. The NAI is a foundation under Dutch law that administers arbitrations; it does not decide disputes itself (Articles 2(1) and (2) NAI Rules). The dispute is decided by an arbitral tribunal of one arbitrator or another odd number of arbitrators (Article 14(1)). If the parties agreed on an even number, an additional arbitrator is appointed as chair (Article 14(3); see also Article 1026 Dutch Code of Civil Procedure). The award is binding on the parties from the day on which it is made (Article 53).
In the business world in particular, parties often choose arbitration. They agree in advance, usually in an arbitration clause, to submit any disputes to arbitration, and they can choose arbitrators with expertise in the relevant field. Arbitration can be quicker than going to court. An arbitral award can also be easier to enforce abroad: in some (often non-European) countries a Dutch court judgment is not readily recognised, while an arbitral award can be recognised and enforced under a treaty such as the 1958 New York Convention. In the Netherlands, foreign awards covered by such a treaty can be recognised and enforced under Article 1075 Dutch Code of Civil Procedure.
The NAI’s amended Arbitration Rules, the NAI Arbitration Rules 2024, apply to arbitration commenced on or after 1 March 2024: the Rules apply in the form they have at the time the arbitration is commenced, and later amendments do not affect pending arbitrations (Article 3(2)). The NAI has since published a revised text of the 2024 Rules, in force as of 31 December 2024. The previous Arbitration Rules dated from 2015, and many changes aim to make dispute resolution quicker and more efficient. The 2024 Rules also contain new provisions on independence and impartiality, sustainability, and diversity and inclusion. In this blog, our arbitration law firm in Amsterdam highlights some of the most important changes.
Where can you find the NAI Arbitration Rules 2024?
The NAI publishes the full text of its rules on its website: the 2024 Rules in the version of 1 March 2024 and in the version in force as of 31 December 2024, as well as the earlier 2015 and 2010 Rules. The PDF below contains the 2024 Rules.
How do the rules safeguard arbitrator independence?
Disclosure of funding
To safeguard the independence and impartiality of arbitrators, the 2024 Rules introduce a duty to disclose third-party funding (Article 8(2)(k) and Article 9(2)(f)). The claimant in the request for arbitration and the respondent in its short answer must state the name of any party, other than the parties to the arbitration, that has made an arrangement with a party for the financing of claims or counterclaims, on the basis of which the financing party has a beneficial interest in the outcome. If such an arrangement is made later, the party concerned must share this information as soon as possible with all other parties, the (prospective) arbitrators and the responsible member of the NAI Case Management Committee.
How do you challenge an arbitrator?
Under Article 13(3), a prospective arbitrator must, before being appointed, make a statement confirming his or her independence and impartiality, availability, electronic means of contact and acceptance of the mandate. A prospective arbitrator who has reason to suspect that there might be justifiable doubts as to his or her impartiality or independence must disclose this in writing, stating the reasons. The parties receive a copy and can comment. During the arbitration, an arbitrator must disclose such doubts without delay (Article 13(4)).
A party can challenge an arbitrator if there are justifiable doubts as to his or her impartiality or independence, but not if it acquiesced in the appointment, unless it only became aware of the ground for the challenge afterwards (Article 23(1)). The challenge must be notified in writing, with reasons, within fourteen days after the reason became known to the challenging party (Article 23(3)). If the arbitrator does not resign within fourteen days and the challenging party, when asked by the NAI, expressly upholds the challenge within fourteen days (otherwise the challenge is deemed withdrawn), a Challenge Chamber of three members of the NAI Challenge Committee decides, after an oral hearing (Article 23(7) and Appendix B, Article B3(1), (2) and (4)).
Which efficiency improvements do the rules introduce?
Expedited arbitration
To improve efficiency, the NAI Arbitration Rules 2024 introduce expedited arbitration in Article 42, not to be confused with emergency arbitration (Article 41). The rules on expedited arbitration in Article 42 and Appendix D apply where:
• the agreement(s) for arbitration by or with the NAI or under the Rules was/are entered into on or after 1 March 2024;
• the total amount claimed by the claimant in the request for arbitration does not exceed €1,000,000; and
• the parties have not ruled out the application of the rules on expedited arbitration.
Parties can also agree in writing to apply expedited arbitration if these conditions are not met (Article 42(2)). In expedited arbitration, the tribunal in principle consists of one arbitrator (Article D4(1)), and the award must be made within five months after the case management conference (Article D11(1)). In exceptional circumstances, the parties jointly and/or the arbitral tribunal can ask the responsible member of the NAI Case Management Committee to decide that the case is not suitable for expedited arbitration; if it so decides, the case continues as an arbitration on the merits (Article 42(5) and Article D9).
Case management conference
Article 26 introduces a case management conference. It is held as soon as possible, but no later than three weeks after the NAI Secretariat has made the arbitration file available to the arbitral tribunal, which happens once all arbitrators have been appointed (Articles 26(1) and 20(1)). At the case management conference, the arbitral tribunal will in any event address the following topics:
• the pecuniary value of the claim or each of the claims, including interest, and the pecuniary value of the non-pecuniary claims;
• whether, also in view of the nature of the case, expedited arbitration (Article 42) must or may be followed;
• the use of electronic means, in particular the NAI Arbitration Platform, as well as the need for specific security measures when using electronic means;
• the desire or need to exchange further written submissions after the exchange of the Statement of Claim and Statement of Defense;
• preferences regarding the midstream conference (Article 30);
• the rules of evidence (Article 34) and the preference or need for the production of documents (Article 35);
• the desire or need for the taking of evidence through the examination of witnesses and/or experts;
• instructions or measures concerning the protection of personal data in accordance with Article 63.
As soon as possible, but no later than two weeks after the case management conference, the arbitral tribunal, after consulting the parties, determines the order of proceedings, including a (provisional) timetable for the further course of the arbitration and a provisional date for the award (Article 26(3)).
What is early determination under the NAI Rules?
To improve efficiency and avoid keeping the dispute unnecessarily broad, Article 45 allows a party to ask the arbitral tribunal to decide, by way of early determination, that a claim, counterclaim or defence is manifestly inadmissible, manifestly outside the tribunal’s jurisdiction or manifestly legally unfounded. After hearing the counterparty, the tribunal first decides whether it will consider the request. If it does, it must give the parties the opportunity to present their views and decide within 30 days after notifying the parties that the request will be considered (Article 45(2)). The decision can take the form of an order or an award.
How do the rules handle multiple agreements?
Under Article 11(1), claims relating to disputes arising from more than one contract can be dealt with in a single arbitration, to the extent that such disputes between the same parties are subject to arbitration by or before the NAI or under the Rules. If a party disputes this before the tribunal is composed, the responsible member of the NAI Case Management Committee decides how the arbitration will be administered (Article 11(2)); once the tribunal has been composed, the tribunal decides (Article 11(3)).
When can the tribunal impose costs sanctions?
As a rule, the unsuccessful party is ordered to pay the costs of the arbitration, except in exceptional circumstances (Article 59(2)), and the tribunal may order it to pay reasonable compensation for the successful party’s legal costs, if and insofar as those costs were in the tribunal’s opinion necessarily incurred in the arbitration (Article 59(3)). New is Article 59(4): when dividing the costs of the arbitration and of legal assistance, the arbitral tribunal may take into account how the parties conducted the proceedings and whether each party promoted the speedy and efficient conduct of the proceedings. If a party has unreasonably delayed the proceedings, the tribunal may take this into account in its decision on costs.
How do the rules address sustainability, diversity and inclusion?
Finally, the NAI Arbitration Rules 2024 address sustainability, diversity and inclusion. Under Article 25(5), the parties, their representatives, the arbitral tribunal and the NAI take aspects of sustainability into account when conducting the proceedings. Under Article 15(5), they take account of the benefits of diversity and inclusivity when nominating and appointing arbitrators.
In addition, requests, communications and other documents are in principle only transmitted electronically, by email or via the NAI arbitration platform (Article 4(2)), with some exceptions, for example where a party is unable to submit the request for arbitration electronically.
What does the NAI model clause look like?
The NAI recommends the following arbitration clause for inclusion in the contract:
“All disputes arising in connection with the present agreement, or further agreements resulting therefrom, shall be settled in accordance with the Arbitration Rules of the Netherlands Arbitration Institute.”
The NAI also recommends stating the place of arbitration, which determines the applicable arbitration law; the hearings can take place elsewhere. With the NAI’s clause generator, parties can add, for example, the number of arbitrators, the method of appointment, the language of the proceedings and an exclusion of consolidation with other arbitral proceedings under Article 1046 Dutch Code of Civil Procedure.
Frequently asked questions about the NAI Arbitration Rules 2024
What are the NAI Arbitration Rules?
They are the procedural rules of the Netherlands Arbitration Institute (NAI). They apply where the parties have referred to arbitration by or before the NAI or in accordance with the Rules (Article 3(1) NAI Rules), usually through an arbitration clause in their contract. The current version is the 2024 Rules as in force from 31 December 2024; the first 2024 version entered into force on 1 March 2024.
Which version of the NAI Rules applies to my arbitration?
The version in force when the arbitration is commenced, which is the day the NAI Secretariat receives the request for arbitration (Articles 3(2) and 8(1)). Later amendments do not affect pending arbitrations. Expedited arbitration under Article 42(1), however, only applies if the arbitration agreement was concluded on or after 1 March 2024 (Article 3(3)), unless the parties agree in writing to apply it (Article 42(2)).
When does expedited arbitration apply under the NAI Rules?
When the arbitration agreement was concluded on or after 1 March 2024, the claimant claims no more than €1,000,000 in total in the request for arbitration, and the parties have not ruled out expedited arbitration (Article 42(1)). The tribunal then in principle consists of one arbitrator (Article D4(1)), and the award must be made within five months after the case management conference (Article D11(1)).
Is NAI arbitration confidential?
Yes. Under Article 7(1) of the NAI Rules, the arbitration is confidential and everyone involved is bound to secrecy, except where disclosure follows from the law or the parties’ agreement. The NAI may publish anonymised awards, orders and challenge decisions, unless a party objects within two months of the date of the decision (Article 7(3)).
Is the NAI a court?
No. The NAI is a foundation under Dutch law that administers arbitrations; it does not decide disputes itself (Article 2(1) and (2) NAI Rules). The arbitral tribunal decides, and its award is binding on the parties (Article 53). Enforcement in the Netherlands requires leave (exequatur) from the provisional relief judge of the district court of the place of arbitration (Article 1062(1) Dutch Code of Civil Procedure). An action to set aside the award is brought before the court of appeal of the place of arbitration, in principle within three months after the award was sent (Article 1064a). The NAI also offers mediation and binding advice under separate rules.
Primary sources
- NAI Arbitration Rules 2024, version in force as of 31 December 2024: Articles 2, 3, 4, 7, 8, 9, 11, 13, 14, 15, 20, 23, 25, 26, 41, 42, 45, 53 and 59; Appendix B (Article B3) and Appendix D (Articles D4, D9 and D11). Overview of all versions (NAI)
- NAI model arbitration clause
- Dutch Code of Civil Procedure: Articles 1026, 1046, 1062, 1064a and 1075
- Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958)
Our lawyers in Amsterdam advise on NAI arbitration. Would you like advice on commencing arbitration proceedings, arbitration clauses under Dutch law, setting aside or enforcing an arbitral award, or finding the best arbitration clause? Please contact Sander van Someren Gréve or Remko Roosjen or one of our other lawyers in Amsterdam at MAAK Advocaten.
