NAI arbitration compared to court litigation and other institutions

Business disputes can be settled in various ways. For example, instead of going to court or the NCC, parties can opt for arbitration at the NAI on the basis of an arbitration agreement. Arbitration is often faster and more flexible than going to court (see table 1). Within arbitration, there are also differences between the various institutes. For example, with NAI arbitration, the lead times are generally shorter and the costs lower than with ICC or LCIA arbitration (see table 2). The NAI has drawn up comparison tables that provide corporate lawyers and lawyers who draw up contracts with a good overview of the differences.

Overview of differences between NAI arbitration and proceedings before a Dutch court

Subject
Intended for	Companies and organisations (national and international). Less suitable for individuals.	Individuals, companies and organisations (national and international).	Companies and organisations (national and international).
Speed	The duration of NAI arbitration proceedings on the merits is on average 9 months (2021) and of NAI Emergency Arbitration proceedings on average 48 days with a median of 38 days (2019 – 2024).	The judiciary does not publish processing times. In disputes with a high financial stake (from €1 million), the processing time is about two years per instance.	The average processing time of proceedings at the NCC District Court is 10.7 months (2019 – 2025).
Number of bodies of proceedings on the merits	Generally, one factual instance (possibly setting aside proceedings)	Possible two factual appeals and possibly cassation.	Possible two factual instances and possibly cassation.
Expertise	Parties have a say in the choice of those who will settle their dispute. Through expertise in a particular industry (e.g. energy, transportation, construction, IT or post-M&A) or jurisdiction, arbitrators are well placed to settle the dispute and give reasons for the award.	The parties have no control over the choice of persons who will settle their dispute.	Parties have no influence on the choice of persons who will settle their dispute. The NCC particularly focuses on competition law, intellectual property law and restructuring.
Confidentiality	Generally confidential	Generally public	Generally public
Enforcement outside Europe	Good on the basis of the New York Convention (with 172 contracting states).	Without a treaty, the proceedings will generally be repeated.	Without a treaty, the proceedings will generally be repeated.
Costs of the organisation, decision-makers and lawyer fees	The parties pay NAI administration fees and the arbitrators’ fees and costs. Because there is only one instance and the turnaround time is short, parties tend to save on lawyers’ fees.	Parties pay court fees (usually lower than NAI administration fees). Judges are paid by the government. Total lawyer fees can add up due to multiple instances.	Parties pay court fees (higher than in normal proceedings and usually lower than in NAI proceedings). Judges are paid by the government. Total legal fees can add up due to multiple instances.
Cost conviction	Full costs order against the unsuccessful party (costs of the NAI, arbitrators and reasonable lawyers’ fees).	Litigation costs award is a fraction of the successful party’s costs.	Litigation costs award is a fraction of the successful party’s costs.
Party autonomy/flexibility	Parties have a lot of flexibility to tailor the procedure their needs.	Standard summons procedure.	Standard summons procedure.
Decision measure	According to the rules of applicable law, unless otherwise agreed	Applicable law.	Applicable law.
Substantive law	Frequent choice of law by parties. Application of non-Dutch law possible through expertise in an arbitral tribunal.	Often choice of law by parties. Foreign law somewhat more difficult for Dutch courts (input from parties extra important).	Often choice of law by parties. Foreign law somewhat trickier for Dutch courts (input from parties extra important).
Who decides?	The arbitral tribunal (consisting of 1 or 3 arbitrators): arbitrators are competent natural persons. NAI arbitrators list includes about 200 qualified arbitrators from the Netherlands and abroad.	Dutch judges and counsel (or judge and counsel deputies).	The NCC(A) consists of 28 Dutch judges.
Language	Parties can agree on any language. About 40 percent of proceedings at the NAI are conducted in the English language.	Dutch (possibly Frisian)	NCC(A): proceedings/ judgment in English Supreme Court: proceedings and decision in Dutch
Electronic litigation	Entirely through the NAI arbitration platform and e-mail.	Limited. Messaging with courts takes place only partly electronically.	Entirely through eNCC.

Subject
Intended for	Companies and organisations (national and international). Less suitable for individuals.	Companies and organisations (national and international).	Companies and organisations (national and international).
Arbitration costs	For a dispute of €10 million, the cost of the arbitration is estimated at €129,000 (€30,500 in administration fees and €98,500 in costs of the 3 arbitrators). For a €950,000 dispute, the cost of arbitration is estimated at € 32,150 (€12,800 in administration fees and €19,350 in arbitrator’s fees).	For a dispute of €10 million, the cost of the Arbitration is estimated at €357,218 (€51,931 in administration fees and €305,286 in costs of the 3 arbitrators). For a dispute of €950,000, the cost of the Arbitration is estimated at €50,085 (€21,115 in administration fees and €28,960 in costs of the 3 arbitrator).	LCIA’s website does not include a cost calculator to estimate costs.
Speed	The duration of NAI arbitration on the merits is on average 9 months (2021. NAI Emergency Arbitration proceedings take on average 48 days with a median of 38 days (2019 – 2024).	An ICC arbitration has an average duration of 27 months and a median of 25 months (2023). The ICC does not report on the duration of emergency arbitrations. No average on the duration of interim relief cases is available online.	An LCIA arbitration has a median duration of 16 months (2013-2016). The ICC does not report on the duration of emergency arbitrations.
Interim measures / *emergency arbitration*	Available. Not required to initiate proceedings on the merits following Emergency arbitration, unless required by applicable (arbitration) law. The result of summary proceedings is an arbitral award.	Available. Required to initiate proceedings on the merits after emergency arbitration. The emergency arbitration is an order.	Available. Required to initiate proceedings on the merits after emergency arbitration. The emergency arbitration is an order.
Expedited arbitration	Expedited arbitration available. Intended duration is 6.5 months. Expedited arbitration is the standard procedure for claims of less than €1 million.	Expedited arbitration available. Expedited arbitration is the standard procedure for claims of less than USD 3 million.	No expedited arbitration available.
Scrutiny	The NAI Rules provide for scrutiny of the arbitral award, in particular on formal requirements. The scrutiny takes five working days for proceedings on the merits and two working days in summary proceedings.	The ICC Rules provide for scrutiny of the arbitral award on formal and substantive issues. The ICC Rules do not provide a time frame for the scrutiny process of the ICC Court.	The LCIA Rules do not provide for the scrutiny of an arbitral award.
Appointment of arbitrators	Appointment by nomination of parties is the default. Parties may opt for the list procedure. If parties do not nominate an arbitrator, the arbitrator is appointed by the NAI.	Appointment by nomination of parties is the default. If parties do not nominate an arbitrator, the arbitrator is appointed by the ICC.	Appointment by the LCIA is the default. The parties may agree that arbitrators are nominated by the parties.