Founded on 22 June 1949, see the memorandum of association here, by Prof R.P. Cleveringa and Prof P. Sanders, among others, the NAI has a rich history. The following are contributions by Prof P. Sanders and J.L.W. Sillevis Smitt on the early years of the NAI. The contributions have been translated into English.
Prof. mr. P. Sanders, TVA/NAI 50 Jaar, TvA 1999/2, p. 39-41
Memories
I have been asked to write a single word about the beginnings, now 50 years ago. If ever the history of the NAI were to be written, it could also be a fascinating story about the development of arbitration. The NAI, as a service institute for the resolution of disputes through arbitration, is growing along with arbitration, which has seen tremendous development over the past 50 years. Numerous new arbitration laws have appeared, including its own new Arbitration Act. Internationally, arbitration has also developed greatly. I will only mention the 1958 New York Convention and UNCITRAL’s 1985 Model Law on Arbitration, which our new law did take into account without being among the 34 countries that adopted the Model Law into their own national arbitration law. In the short scope of this article, therefore, I will not limit myself to the NAI’s beginnings in 1949, but will also devote a few words to the development over the 35 years that I have been closely involved with the NAI in one capacity or another with, finally, a modest glimpse into the future.
The occasion
The Netherlands was always an arbitration country. Numerous permanent arbitration tribunals already existed before the 1940-1945 war in special fields such as construction, product trade (grains, coffee, southern fruits, etc.). However, there was no general arbitration institute that provided for arbitration for the benefit of business, but also for private individuals who agree ad hoc in a contract via the model arbitration clause to NAI arbitration if disputes should arise. Even today, the NAI is still the only general arbitration institute in our country.
I was convinced of the desirability of such a general institute when I first visited the United States after the war. There, such a general institute already existed, namely the AAA, the American Arbitration Association. In addition, in Europe, we had long known the International Chamber of Commerce (ICC in Paris). However, this one is for international arbitration only.
What I learned from the AAA on that first trip to New York, shortly after the war, in fact gave rise to the establishment in the Netherlands of the NAI. The list procedure, for example, which we apply in appointing arbitrators, as described by our President under 5 in his article, is derived from the AAA. That method of appointment approaches the ideal: parties appoint arbitrators by mutual agreement. That list procedure provides for the cases when the parties cannot agree together. They may then choose from those proposed by the NAI. This remains an appointment by a third party, the NAI, but regularly the parties’ choice agrees and so the ideal is approached after all. At the time, this was a novelty that was adopted in 1976 by UNCITRAL (United Nations Commission for International Trade Law) in the now well-known and widely used UNCITRAL Arbitration Rules of 1976, the draft of which I was privileged to draft.
The very beginning
After my return from New York, I put myself in touch with Prof R. P. Cleveringa. After studying law in Leiden, I had obtained a doctorate from him in 1945 on the thesis ‘Affectation of Arbitral Awards’. His is the wonderful commentary on the old law (620-656 Rv) in the standard work ‘van Rossum-Cleveringa’. That dissertation was scheduled for 29 November 1940, but on 27 November the university closed after his famous speech following the forced resignation of Prof Meijers. With him, I had a strong connection. On my request to take on the presidency of the NAI, he was immediately willing to do so.
However, there were a few things involved before the NAI could start. A board had to be formed, Arbitration Rules had to be drafted and a general list of names of arbitrators had to be compiled. And how were we to get the initial capital for the Foundation?
Together with Cleveringa, I visited the Chambers of Commerce in Rotterdam and Amsterdam where most of the arbitrations took place. Both Chambers were immediately willing to provide f 250 each. A board had to be composed as broadly as possible. Both Chambers were represented on it, as well as the legal profession and the Association for Industry and Trade. I no longer have a list of members from that time but in any case there were far fewer than the current 30.
With the help of the board and all chambers of commerce in the country, this first arbitration list was formed. Those Chambers were also willing to extend hospitality to the new Foundation to hold arbitrations. After all, we did not have our own premises like the AAA, which has offices not only in New York but in many other places in the United States. So there were some things involved before the NAI ship could go into business.
Nor was there, in the beginning, the numbers of arbitrations that we know today. The NAI was a general institute in addition to the many permanent arbitral tribunals specialised in special areas. The number of arbitrations therefore grew only slowly, especially as we deliberately refrained from advertising. Practice had to show if there was a need. As secretary, I could best combine this with my law practice. A fee or reimbursement of expenses was not even considered. So the initial capital of NLG 500 could continue to grow. The NAI never had to ask for sponsors.
Subsequent years
So the NAI started modestly. I will be brief about the first 35 years about which I was also asked to write something. I was not even aware that this was such a long period. As a reminder, however, I would like to mention that even before I stepped down as president, the board decided to invite the Presidents of the courts of Amsterdam, Rotterdam and The Hague to join the board. This, too, was borrowed from abroad. In France ( Comité francais de l’ Arbitrage) and in England and the USA, that link had existed before.
In the Netherlands we were also able to benefit from it when our new arbitration law was in the pipeline, which was discussed in the NAI Board and undoubtedly contributed to the current text of the new law, which came into force on 1 December 1986.
This could be repeated if a clean-up of our law should come up for discussion. I myself see no urgent reason for this, although I do make two proposals to this effect in my ‘The New Arbitration Law’, third edition, p. 71 and p. 166.
Mr Nolen-From AR to TvA
I cannot write about the past without mentioning the name of Mr W. Nolen from Rotterdam. Alongside Prof Cleveringa, he was the grand specialist in the field of arbitration. His Manual for Arbitrators’, the last and third edition of which appeared in 1957, was a reference point for all those who had to deal with arbitration in practice, both arbitrators and lawyers.
In addition to his large arbitration practice, Nolen looked after Arbitral Jurisprudence. He started this in 1919 which was then unique in the world. In those days, publication of arbitral awards was ‘not done’ because of the private nature of arbitration and its confidentiality. Even today, this is respected and awards are anonymised where necessary. In addition, Nolen wrote many editorials and also published in his journal governmental jurisprudence on arbitration, possibly accompanied by a critical annotation.
The current Journal of Arbitration is a continuation of Arbitral Jurisprudence, albeit no longer monthly but four times a year. The Journal is housed in a separate Journal of Arbitration Foundation. The NAI Foundation is the sole director of the Tv A Foundation, so there is a close relationship between NAI-Tv A. The Editor-in-Chief, assisted by an extensive Editorial Board and an effective Secretariat basically takes care of the composition of the issues of our current TvA. Every foreign arbitration institute of some importance also has its own magazine.
A look into the future
In those first 35 years, the NAI grew into the institution we know today. During that period, international arbitration in particular took off, thanks in part to the 1958 New York Convention mentioned above. The NAI itself has also taken international arbitration into account. Thus, our Rules provide, inter alia, in Article 16(3) that if the parties are not of the same nationality, each of the parties may require, if an arbitral tribunal of three is to be appointed, that the chairman is not of the nationality of one of the parties. The latest version of our arbitration rules is already available in English. The NAI’s publication ‘The Netherlands Arbitration Act 1986’ appeared, early in 1987, in English, French and German, with 136 short notes. It was widely distributed abroad by the NAI. The NAI is also regularly represented at international conferences, especially those of ICCA, and is also among the members of the International Federation of Arbitration Institutes, chaired by the general council of the AAA.
The NAI has achieved international prominence. The regular contacts with our Belgian sister organisation, CEPANI, already mentioned by our president in his contribution, should also be mentioned in this context. In my opinion, this international aspect will continue to deserve full attention for the NAI and for the magazine TvA. To that extent, then, this is a glimpse into the future in which I expect arbitration, including that of the NAI, to play an increasingly important role.
May I conclude these reminiscences by congratulating the Board:
Vivat floreat et crescat NAI!
Mr. J.L.W. Sillevis Smitt, NAI 50 jaar. Arbitrage in wiens handen?, Deventer, Kluwer 2000
Some contemporary aspects of half a century of dispute resolution services
Introduction
1. The Netherlands Arbitration Institute Foundation was established by notarial deed on 22 June 1949. Exactly 50 years later, this fact will be commemorated with a lustrum symposium under the title ‘Arbitration: in whose hands?’. Through pre-announcements – including in the TvA, attention has been drawn to this symposium. The final announcement will follow in the month of April, accompanied by a registration form.
Two articles are dedicated to the history of the NAI in this issue of the TvA. The first contribution is by the co-founder and honorary president of the NAI, Prof P Sanders. His contribution highlights the considerable period of 35 years during which he led the NAI, first as secretary and later as chairman. The first president of the NAI was Prof R.P. Cleveringa. He too was a co-founder of the institute.
The present contribution is devoted to the past 15 years. It aims to provide some insight into the activities of the institute during that period in the light of today’s state of affairs.
In the context of these contributions, there can be no question of actual historiography. For that, the institute is still too young and its place in legal society too modest. We will therefore stick to highlighting the most striking events and developments.
Professor P. Sanders – honorary president in life and wellbeing
2. One of the most remarkable aspects surrounding the upcoming 50th anniversary of the NAI is, that one of its founders is not only still alive, but also in good health and actively participating in the social life and various activities of the institute. Thus, with his contribution to this issue of the TvA, Prof Sanders is giving an attestation de vita, which is more than a single sign of life. With this remarkable fact surrounding the celebration of the fifth anniversary, only one aspect of Prof Sanders’ significance for the development of arbitration and arbitration law has been mentioned. That significance cannot be lightly overstated.
3. In the international context, Prof Sanders actively participated in the creation and left his mark on the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. On behalf of the United Nations, he participated in the work of the UNCITRAL. This Commission created universal arbitration rules in the form of the UNCITRAL RULES and a model arbitration law, which are still of great and current significance today in international arbitration practice and for the creation or renewal of arbitration law in a large number of countries of the world. From 1975 to 1988, Prof Sanders was President of the International Council for Commercial Arbitration (ICCA). In 1988, he was appointed Honorary President of this most important international organisation in the field of international commercial arbitration.
In our country, Prof Sanders initiated our new arbitration law through a preliminary draft, which formed the basis of the final regulation, published in the Official Gazette in 1986.
Prof Sanders was therefore rightly awarded the 1998 Academy medal by the Royal Netherlands Academy of Arts and Sciences, which was presented to him on the recommendation of the Literature Department. In his laudation, Prof Gerritsen, chairman of the Department of Literature, called Prof Sanders’ life “full of destiny and case”. By borrowing this characterisation from P.C. Hooft, he was referring to a life that has more than once placed Prof Sanders in the spotlight of national current affairs, that has also made him play a significant role on the international stage, but that, in addition to steady hard work, has always left room for what, in his view, is no less important: the love of art.
In 1992, the NAI expressed its gratitude for Prof Sanders’ great significance for arbitration by collecting his annotations in the TvA on the occasion of his 80th birthday. A second edition of this volume ‘The judge and arbitration’ appeared in 1996, on the occasion of the termination of his annotation work. In the same year, an extensive interview with Prof Sanders appeared in the TvA, providing a vivid picture of his own views on past and future in the fascinating world of arbitration.
Therefore, when a congratulations are addressed to the NAI in connection with its future 50th anniversary, it belongs especially to Prof Sanders. He himself, in his acceptance speech after the presentation of the 1998 Academy medal, spoke of his two loves: arbitration and corporate law. One thing is certain: as far as the NAI is concerned, that love is reciprocal.
Institutional arbitration – dependence and independence
4. Like any right-minded arbitration institute, the NAI aims to be an independent institution, the main purpose of which is to promote dispute resolution through arbitration, particularly for business. This independence is most evident in ensuring the appointment of independent arbitrators in arbitrations notified to the NAI.
For its continued existence, however, the NAI depends in part on the extent to which its services are called upon and thus on those arbitrations themselves. In that context, it is gratifying to note that the past decades have seen a steady growth in the annual new registrations. In 1984, there were 69 new filings; in 1989, 77. The year 1994 saw 107 new registrations and the most recent year, 1998, 125.
The NAI is also playing an increasing role internationally. In the past ten years, a quarter of the new filings have been international arbitrations, often involving large and complex disputes. The exceptional nature of the international arbitrations was expressed in two connected cases by the appointment of five arbitrators each; so far, a unique occurrence in the history of the NAI.
Separate mention should also be made of summary proceedings, which, with the entry into force of the amended Arbitration Regulations on 1 January 1998, can also be submitted as separate proceedings. The Board’s expectation that this will meet a practical need seems to be fulfilled. In the period from 1 January 1998 to mid-March 1999, 11 separate interim arbitral proceedings were notified. 2 interlocutory arbitral proceedings were filed in a pending arbitration. One arbitral proceedings for interim relief, which were also binding pursuant to Article 3 of the Arbitration Rules, were also reported.
Remarkably, in almost none of these cases were the arbitral proceedings notified individually followed by a notification for arbitration on the merits. If this development continues, summary arbitral proceedings will once again be able to meet the need for quick dispute resolution.
5. The need to appoint independent arbitrators stands and falls with the possibility of having an arsenal of expert and competent prospective arbitrators. In this respect, an arbitral institution depends on the willingness of a large number of persons to make themselves available for the responsible task of arbitral jurisdiction. In this respect, too, dependence and independence go hand in hand.
It may be noted that the NAI enjoys the unfailing willingness of experts from very different sections of society to act as arbitrators in NAI arbitrations. In celebrating its 50th anniversary, an explicit token of gratitude for this willingness is in order. Like government justice, the quality of arbitral jurisprudence, apart from independence and impartiality, is mainly determined by the expertise and jurisdictional skills of the arbitrators. It gives confidence for the future, that the NAI can never appeal in vain to what it considers expert and competent persons.
Pursuant to the Arbitration Rules, the NAI maintains a General Arbitration List, which currently includes about 300 prospective arbitrators. These candidates are placed on this list by the General Board on the recommendation of the Executive Board. It is a constant concern of the Board to update this list, i.e. to provide new suitable candidates from very different sectors of society time and again.
Traditionally, lawyers who are familiar with litigation work and have experience in arbitration tend to act as arbitrators. Until 1986, these were mainly lawyers and corporate lawyers. After the entry into force of the new Arbitration Act, which allowed members of the judiciary to act as arbitrators, the NAI can increasingly call on them as well. Moreover, some members of the judiciary, who appear on the general arbitration list, have expressed their willingness to act as arbitrators in summary arbitral proceedings.
The arbitration rules – indispensable tool in any arbitration
6. Even though the new Arbitration Act is comprehensive in regulating the main stages of an arbitration, this does not detract from the fact that a more nuanced regulation as part of the arbitration agreement is desirable for its proper conduct. If an arbitration clause, be it direct or indirect, does not regulate the appointment of arbitrators, the manner in which the proceedings are conducted, the power of arbitrators to take interim measures, the language of the proceedings, the taking of evidence and many other issues, these topics can cause major problems and, in any case, serious delays in arbitration. Arbitration institutes therefore derive their value primarily from the ‘ready-made delivery’ of arbitration rules, which by virtue of legislative designation are considered part of the arbitration agreement both in the Netherlands but also in many other countries. The UNCITRAL RULES mentioned above in paragraph 2 aim to perform that same function. By declaring those rules applicable and appointing a nominating authority in case the parties themselves cannot agree on the appointment and/or number of arbitrators, the contending parties and the arbitrators have at their disposal an indispensable instrument from which they can derive the necessary ground rules for arbitration.
An additional advantage of institutional arbitration in this regard is that most arbitral institutions update their rules from time to time to reflect new legislation and social developments. The sweeping amendment of the NAI Arbitration Rules in 1986 is a case in point. In the same vein is the introduction of summary arbitral proceedings, reported earlier in the TvA.
From the very beginning, a typical feature of NAI arbitration has been the so-called list procedure. After an arbitration application is filed, arbitrators are not appointed directly by the NAI (the administrator). The parties are given the opportunity to express their preference for the appointment of those, who appear on a list of candidate arbitrators sent to the parties by the administrator. The names of the persons appearing on that list are preferably taken from the general list of arbitrators, which is compiled, supplemented and amended by the NAI. It was discussed above in par. 4.
This list procedure still works to the full satisfaction of the parties that have opted for NAI arbitration. The psychological effect of applying this list procedure is the same as when the parties mutually agree on the persons, who will act as arbitrators and the parties themselves directly appoint these persons as arbitrators. On the other hand, the effect of this method of appointment is that the appointed arbitrators may assume that they have the confidence of the contending parties.
7. The most substantial amendments to the NAI Arbitration Rules have already been mentioned in passing above. They are those of 1986 in connection with the new Arbitration Act that came into force on 1 December 1986; in addition, the amendment with effect from 1 January 1998, which introduced summary arbitral proceedings as the most important addition to the procedural rules.
8. In the intervening period, the NAI Rules were amended once more and that was in 1992 with entry into force on 1 January 1993. The 1992 amendments were mainly motivated by practical experience in the application of the previous Rules. The most important of them concern the definition of international arbitration and the declaration in case of doubt about impartiality and independence (the so-called disclosure obligation). The amended provisions are still part of the Rules currently in force.
9. Since 1986, the Arbitration Rules have been preceded by an Introduction. This contains a brief explanation of certain provisions of the Rules. The Introduction is brief and does not comment on all the provisions of the Rules. The Board is therefore considering the possibility of making the Introduction, which is not formally part of the Rules themselves, more comprehensive and more in the nature of a short commentary in the next reissue of the Arbitration Rules.
Arbitration and administration – an interplay of responsibilities
10. A striking development in the functioning of the NAI over the past 15 years has been the increased, active involvement of the institute in the person of the secretary/administrator and the secretariat working under his responsibility. This increased involvement mainly concerns the progress of arbitration. Diligent handling of the dispute is the primary responsibility of the appointed arbitral tribunal. However, the secretariat receives copies of all procedural documents and correspondence conducted, showing the deadlines set and deferrals granted. These data are
processed in the NAI’s computerised administration, which easily enables the secretariat to remind the arbitral tribunal and/or parties of the omission of procedural acts when the time limit for doing so has expired. Experience shows that these ‘unsolicited reminders’ are appreciated. They promote internal ‘discipline’ with the aim of ensuring the much-needed diligence.
The NAI’s policy is unchanged to keep the duration of arbitrations administered by the NAI as short as reasonably possible. The general impression that arbitrations take a long time should be avoided. If necessary, the Board will consider measures and possibly amendments to the regulations in order to continue to guarantee prompt handling of arbitrations.
11. An important aspect of arbitration in general is the associated costs. In addition to the administrative costs, which all arbitration institutes charge to the arbitrating parties according to different calculation methods, the arbitrator’s or arbitrators’ fees and disbursements are, of course, factors that largely determine the total costs involved in an arbitration.
12. In an NAI arbitration, the fee of the arbitrator or arbitrators is determined by the administrator after consultation with the arbitrator or arbitrators. Practice has shown that, increasingly, parties wish to have an insight into the costs to be expected from them at the start of the arbitration. This has led to the practical rule that the administrator and the secretariat will consult in advance on the amount of the hourly rate, which the arbitrator or arbitrators to be appointed will use as a guideline for the final determination of the fees as a proposal to the administrator. The hourly rate to be charged for each arbitrator category will be indicated to the parties as part of the appointment procedure. To this end, guidelines were adopted some time ago by the NAI General Board, which apply in particular to national arbitrations. The cooperation in increasingly larger associations of professionals, such as lawyers, notaries, accountants and tax consultants, have seen an increase in the level of hourly fees charged by these professions in the exercise of their professional activities. This increase calls for vigilance on the part of arbitration institutions, which bear responsibility for the costs associated with the actual arbitration work. The policy of the NAI’s General Board is to strike an appropriate balance between maintaining a reasonable level of costs on the one hand and, on the other, continuing to have at their disposal the expertise of practitioners, who are part of large partnerships. In fact, this is a piece of market forces in the true sense of the word. Discussions on this in the General Board have shown how important the broad and varied composition of this highest body of the NAI is for the institute’s policy-making.
13. The arbitral awards, which come about with the application of the NAI Arbitration Rules, are the responsibility of the appointed arbitral tribunal. It is not the NAI itself, which makes the awards. However, they are sent to the parties by the administrator after they have been made. Unlike, for example, in arbitration under the ICC Rules, where the ICC Court of Arbitration has to give its approval to the award to be issued according to its form (‘as to its form’) (the so-called ‘scrutiny of the award’), the NAI does not have a supervisory or approving role in the making of the final award.
Nevertheless, the administrator and secretariat of the NAI consider it a matter of course to subject the draft award, which is sent to them in connection with the determination of costs, to a formal review at the request of the arbitrator or arbitrators. In practice, this sometimes avoids imperfections that could cause problems at the post-judgment stage. This is another example of the interplay of responsibilities of arbitral tribunal and administrative institute, with which an optimal final result can be achieved.
Board responsibility – more than ‘minding the shop’
14. Over the past 15 years, the NAI’s administrative work has increased significantly in nature and scope. The general board still meets twice a year. However, the agendas of these meetings have gradually been filled with topics, which not only give rise to extensive exchange of ideas and multiple decision-making, but in particular also require a lot of time of preparation from the secretary/treasurer, the deputy secretary and the other members of the executive board. Whereas in 1984 and the immediately following years it was still possible for the chairman and secretary to settle ongoing matters with regular telephone consultations, it gradually became necessary to expand the executive committee and have it meet at intervals of several months.
15. All these meetings bear the hallmark of good arbitration: open consultation in a benevolent and friendly atmosphere on the basis of well-prepared papers. An explicit and heartfelt token of appreciation deserves the Deputy Secretary, Ms F.D. von Hombracht-Brinkman. Her commitment, experience and skills are one of those indispensable factors from which a modest organisation like the NAI can derive its strength.
16. The subjects, to which attention must be paid when running an arbitration institute such as the NAI, are as diverse as they are fascinating. They range from preparation and implementation of amendments to regulations, financial management, computerisation, taxation, cooperation with other institutions, ‘screening’ of candidates for the general list of arbitrators, to decisions on requests to challenge (rarely) and many other ongoing issues.
Arbitration as a ‘good message’ – the TvA
17. In addition to providing direct services through the administration of arbitrations, the NAI also seeks to promote and draw attention to arbitration through other means.
One of the most important tools in this respect is the Journal of Arbitration. The TvA is published by a separate foundation, of which the NAI is the director. However, the Tv A is is not the body for the NAI alone. Its editorial board is also formed by representatives of other permanent arbitration bodies in the Netherlands. The loyal reader of the TvA knows that the arbitral case law published in it therefore covers a broad field, at least measured by a national standard.
The NAI is fortunate that Prof H.J. Snijders has agreed to take on the role of editor-in-chief. Under his leadership, the TvA has not only acquired a new form, but above all a new, stimulating and readable content and a broadly composed editorial board. Partly for this reason, it is regrettable, that the number of subscriptions to the Tv A is still very modest so far. The Tv A deserves a much wider readership. However, reality also dictates realism. The Dutch language area is limited. Foreign subscribers can therefore only be found in Belgium, which in itself is a gratifying development. South Africa, for obvious reasons, cannot play a significant role here.
Finally, it should not go unmentioned that Prof W.D.H. Asser, professor of civil procedural law in Nijmegen and a lawyer in Amsterdam, provides annotations to the government case law in the TvA. He is an able successor to Prof Sanders, who, as the nestor of arbitration, provided this section in an outstanding manner for many long years.
The Chair of National and International Arbitration
18. In 1987, the NAI was able to establish a Chair in National and International Arbitration at Erasmus University Rotterdam. Over a year later, Prof A.J. van den Berg was appointed to that chair. Apart from being a lawyer, he is also vice-chairman of the NAI. His very broad experience in the field of arbitration makes him a fascinating teacher for students and, above all, an authoritative author on practically all aspects of National and International Arbitration. He is also general editor of the Yearbook of International Commercial Arbitration, a publication of the International Council for Commercial Arbitration, in which he has had a seat for several years.
Contacts with sister institutions
19. The NAI has concluded cooperation agreements with a large number of sister institutions around the world. These agreements formalise the willingness to provide mutual assistance to each other, if required in connection with the administration of an arbitration or otherwise. With the Belgian sister institution CEPINA, this cooperation continues. The CEPINA Board and the NAI Executive Board hold annual consultations, alternately in Brussels, Rotterdam or The Hague. Prof Sanders also takes part in these consultations. Practical experiences and new developments are exchanged and commented on. This exchange is particularly useful and stimulating. For arbitration, too, there are always new things to learn. We are therefore grateful to our Belgian friends for the stimulating and friendly manner in which they participate in these annual consultations.
There is excellent cooperation with sister institutions in the Netherlands. It manifests itself in the willingness to assist in the search for a suitable candidate arbitrator, a common desire to promote arbitration and cooperation in the context of the Stichting Tijdschrift voor Arbitrage.
The NAI and mediation – the mini-tration
20. At the beginning of the 1990s, the first signs of attention to a form of alternative dispute resolution, in which until then there had been virtually no interest here in the Netherlands, could be detected in the Netherlands. Today, mediation and ADR are concepts that are no longer unfamiliar sounds to practising lawyers, but also to the government and the business community.
The NAI has not played a passive role with regard to this development. A working group from the General Board, consisting of Mr B.J. Asscher, the former president of the Amsterdam District Court, and Mr H. Beekhuis, then a councillor at the Den Bosch Court of Appeal and currently a member of the Council of State, gave an important impetus to the NAI’s own mediation procedure, the main features of which correspond to what is known in the United States as a minitrial. An informal and playful competition among the members of the general board and their spouses and partners, produced the contemporary name ‘minitrial’. Thus, the NAI has also made its contribution to language renewal.
Meanwhile, the NAI has had to note, that in practice there is so far little interest in mini-titrage. In part, this can be explained by the relative unfamiliarity of mediation as a form of dispute resolution; in part, perhaps, by the highly structured nature of mini-titration, which is only needed for the ‘more serious’ disputes. Moreover, parties are not bound to all stages of mini-titration if they wish to attempt mediation through the intervention of the NAI. By agreement, for example, the written preparation and presentation before the mini-titration committee may be waived.
In yet another respect, the NAI has made a modest contribution to mediation as a fully-fledged form of dispute resolution in our country. The secretary of the NAI, Mr P.W van Baal, is part of the so-called ADR Platform, created by the Minister of Justice during the previous cabinet.
Furthermore, the NAI is co-founder of the ADR Centre for Business Foundation, which was launched in April 1998 and maintains close ties with the business community and the Society of Corporate Counsel. The NAI provided its ‘know-how’ in setting up and developing the secretariat of the ACB. In this way, the foundations for a fruitful cooperation have been laid.
Concluding remarks
21. The ‘good men in equity’, which is a yardstick for acting as an arbitrator, is an age-old phenomenon. To use a variation on a well-known saying, they are ‘as old as the way of Rome’. In a study, which has unjustly received very little publicity, Kamphuisen described the origins of the concept of ‘good men in equity’.
It is gratifying to note, that among those ‘good men’ in the last decade, more and more ‘good women’ can also be understood. In the international arena, incidentally, this development still needs to take more shape.
The most important thing in arbitration, however, is to be aware, time and again, of its essential characteristic. That is, that not state judges, not necessarily lawyers, but expert, independent and impartial persons with the experience, knowledge and competence, needed to resolve a particular dispute, act as arbitrators. It is both a community and, again and again, an individual interest, that dispute resolution by persons other than the state courts are provided with the necessary safeguards. The new Arbitration Act has provided an excellent framework for this. For more than 12 years, experience has been gained with its application. The time seems to have come to make amendments and additions on some minor points. In the context of this contribution, this cannot be discussed further.
