9.2 Summary

Documentgegevens:

Mr. J.P. Fokker, datum 04-05-2009

Datum: 04-05-2009
Auteur: Mr. J.P. Fokker
JCDI: JCDI:ADS395555:1
Vakgebied(en): Burgerlijk procesrecht (V)

Arbitration is a method of dispute resolution by a private person acting as a judge (the 'arbitrator'). This book treats the use of electronic means, e-mail in particular, in arbitration. It describes the current situation regarding e-arbitration in legislation and in legal practice.

After a brief introduction on arbitration, the author comments on problems which may arise when e-mail is used in arbitration.

The following are examples of questions addressed:

1.: Can an arbitration agreement (without an agreement, there can be no arbitration) be effected through the electronic channel?
2.: Can a party, with the mere click of a mouse, be bound to an arbitration clause included in general contract conditions?
3.: Can a request for arbitration be submitted through the electronic channel, and can the other party and arbitrators be obligated to use electronic arbitration?
4.: What are the legal regulations regarding electronic signatures?
5.: What about the electronic dispatch of messages and/or documents in arbitration proceedings? Who bears the risk if the dispatch fails?
6.: Can evidence be provided through the electronic channel? In this connection, 'e-discovery' in arbitration proceedings is discussed as well.
7.: What are the implications for recognition, both in and outside the Netherlands, of arbitrators sending their decision by e-mail, signed with an electronic signature?
8.: Does e-arbitration conflict with Article 6 of the European Convention on Human Rights (ECHR)?
9.: Is it necessary to adjust the Dutch Arbitration Act, based on the answers to these questions?

These are some of the questions which the author attempts to answer.

To conclude: a group of arbitration specialists has been working on a proposal to amend the Dutch Arbitration Act. Their proposal, which has been presented to the Ministry of Justice, has not yet led to a legislative proposal. The proposed provisions, insofar as relevant to e-arbitration, are examined.