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NAI Newsletter 2022-1

MESSAGE FROM THE PRESIDENT OF THE NAI

Dear NAI Friends,

 

I am extremely happy to present this first NAI Newsletter of 2022 to you.

 

Although the present situation in relation to Corona has slightly improved and the lock down measures in the Netherlands have been attenuated, the situation is still uncertain unfortunately. Also, as we know, some of you, in various ways, have suffered or even still suffer from Corona, most probably the Omicron variant, and we hope that you have recovered in the meantime or that you will recover soon.

 

Of course, these days, we very much miss our arbitration gatherings, through which we normally also share information. Electronic means have indeed shown a proper alternative, but they cannot fully compensate for the loss of meetings where people actually get together. And, after a while, we all seem to suffer a bit from Zoom fatigue, or any other fatigue depending on the application(s) used.

 

When discussing the Corona crisis, I even leave aside other developments, e.g., geopolitical developments and global environmental developments, which also make the present situation rather insecure. In relation to these developments, I am proud to let you know that we have decided to sign the Green Pledge as part of the campaign for greener arbitrations.

 

Fully realizing that the above-mentioned developments are of a wholly different dimension, we hope that, with this NAI Newsletter, we may provide you with some useful information regarding recent developments within the NAI.

 

Various topics are touched upon in this Newsletter and I may refer to the full text thereof below. I would only wish to highlight a few topics, also because of their relative importance.

 

Firstly, the expansion of the NAI Staff. The NAI Board took a conscious decision to expand the NAI Staff in order to live up to the users’ – rightly – high expectations as regards the services of the NAI. Further to the appointment of our Secretary General, Ms. Camilla Perera-de Wit (in 2019) and the appointment of our Director Business Operations, Mr. Tomas Vaal (in 2020), the NAI Board is very proud to inform you of the appointment of our new Administrator, Ms. Wieteke Malcontent (as per 1 January 2022). Ms. Malcontent is a highly experienced lawyer and we have great confidence that she will fulfill the important role of Administrator as the users deem necessary.

This also allows me to express my gratitude to Ms. Malcontent’s predecessor, Ms. Mirjam Trouw, for her tremendous contribution to the administration of cases at the NAI. These special mentions do not take away the importance of the addition of other new staff members, which will be discussed in more detail below. Also, as always, we are very grateful for the work of the staff members who, with huge commitment, have contributed to the work of the NAI for multiple years.

 

In order to meet the aforementioned expectations of our users, the NAI Board has decided to revise its calculation method for the administrations fees. The administration fees will be increased in some respects, but the new calculation method will at the same time provide a fairer distribution of fees through a proportionally sliding fee scale. The arbitrator fees will also be increased to a certain extent. The new fees will apply as per 15 February.

 

Secondly, I would like to inform you of the introduction of the New NAI Arbitration Rules 2022, which are expected to enter into force on 1 July 2022. On 4 March 2022, a final draft of the New Rules will be submitted to the NAI Advisory Board. On the basis of the advice to be received from the NAI Advisory Board, the NAI Board expects to finalize and publish the New Rules on 1 May 2022 the latest so that the Rules may enter into force on 1 July 2022. Of course, we will keep you posted of any developments regarding the New NAI Arbitration Rules 2022.

 

Thirdly, I would like to draw your attention to some interesting upcoming gatherings, some of which even allow us to physically attend. On 17 March 2022, a symposium in The Hague will be devoted to 5 Years New Dutch Arbitration Act (2015). On 22 April 2022, the NAI and CEPANI will organize their traditional joint colloquium, which will take place in Rotterdam this time. The speakers will focus on Topical Trends in Arbitration. Finally, the NAI will invite you to its first Annual General Meeting, which will be held on 8 September 2022 (place & venue to be announced in the coming months). Apart from these gatherings, the NAI will also organize special training sessions for arbitrators and secretaries.

The dates for these sessions will be published soon. Needless to say that we sincerely hope to meet you at one or more of the aforementioned gatherings.

 

Finally, if you have any questions or wish to share any thoughts in relation to the NAI, please do not hesitate to contact me or any of the other members of the NAI Board or NAI Staff.

 

Sincerely yours,

 

on behalf of the NAI Board,

 

Professor Dr. Gerard Meijer

 

NAI EXPANDS ITS TEAM - MESSAGE FROM THE SECRETARY-GENERAL/DIRECTOR-GENERAL

We are delighted to announce the following recent hires:

Wieteke Malcontent has joined the NAI as Administrator. Wieteke has a law degree from Leiden University (Leiden) and Columbia University (New York). For almost a decade she worked as a (senior) lawyer at the litigation department of an international law firm in Amsterdam, followed by a boutique law firm in the same city. After that Wieteke was employed as a general counsel by a Dutch litigation funder. Wieteke currently lives in Rotterdam. She likes to spend her free time with her family outdoors (in summer and winter).

 

Jasper Thielking has joined the NAI as Case Manager, after a long career as a paralegal in (litigation) support at a Dutch law firm. As a paralegal, Jasper supported the firm’s lawyers in all procedural operations relating to cases at both District Courts and Courts of Appeal. When he is not behind his desk, Jasper enjoys reading, music, and attending concerts. 

 

Sofia Paoletta has joined the NAI as Legal Counsel. Sofia joined the NAI after completing the Double Degree Toga aan de Maas in combination with a Master in  Commercial Law at Erasmus University. Having been born in Italy,  Sofia moved with her family throughout Europe where she obtained her International Baccalaureate in Switzerland. Sofia has a passion for ADR, while at Maastricht University Sofia was a member of the Dutch national team at the International Client Consultation Competition and additionally she and her team reached the quarter at the International Commercial Mediation Competition. In her free time Sofia likes to pass time with her friends and family, hike and enjoy good food. She enjoys traveling to new places and practicing her foreign language skills.

 

Thomas de Bekker joined the NAI as Legal Counsel. Thomas was born in the Netherlands but grew up in the Czech Republic and the United Arab  Emirates. He returned to the Netherlands in 2015 to study law in Maastricht and, subsequently, in Rotterdam. During his Master Privaatrecht (Dutch Private Law) at the Erasmus University Rotterdam, he was a member of the 2019/2020 Willem C. Vis Moot Team. He also coached the 2020/2021 Team and will coach the 2021/2022 Team. Thomas is fluent in Dutch and English, and is studying Russian.

 

 

 

    Wieteke Malcontent

 

 

    

   Jasper Thielking

 

   

     Sofia Paoletta

 

 

 

 

   

  Thomas de Bekker

 

 

Secretary-General/Director-General Camilla Perera-de Wit, on the new team members:

 

“I am delighted to welcome these four new team members aboard. It is very special to me to see the NAI team grow in this way. From the start of my appointment, the Board and I have made a clear strategy in investing quality and efficiency, with a focus on human capital. The NAI now has a solid layer of Legal Counsel on board, a layer which previously didn’t exist in this way at the NAI. We believe this change will help professionalize the organization and the efficient administration of cases. I look forward to progressing the work at the NAI with the wider team in 2022; we have several new initiatives materializing in the near future and I can’t wait to report back to you on this later this year.”

 

We also want to reflect on the departure of the previous Administrator, Mirjam Trouw. Mirjam has been a tremendous support over the past years, initially as Legal Counsel and more recently as Administrator. Mirjam has proven her solid knowledge of NAI arbitrations over the past years and was well respected by arbitrators, counsel as well as the team for her eye for detail and her ability to think strategically in the administration of NAI arbitrations. We would like to take this opportunity to thank again Mirjam for her dedication over the past decade. We wish her all the very best.

 

MESSAGE FROM THE DIRECTOR BUSINESS OPERATIONS - NAI IT PROJECT

The past year a steering group including Eric Dorrestijn (member of the Executive Board of the NAI, portfolio ICT/operations), Nard van Breemen (member of the Advisory Board of the NAI), Camilla Perera-de Wit, (Secretary-General/Director-General of the NAI), and Tomas Vaal (Director Business Operations of the NAI) have worked on the framework of an extensive IT project to improve the NAI’s digital environment, both for internal and external users. It’s foreseen that both the IT infrastructure and the software applications will undergo a complete overhaul and move into the cloud. The NAI has engaged Alexander Hijmering (Principal Consultant at Pinnacle) to assist the Director Business Operations with ensuring the successful implementation of the project.

 

 

   Alexander Hijmering

After the approval of the IT project by the Executive Board of the NAI, the implementation of the IT project commenced in September 2021. The project consists of four phases: (i) an update of the accounting and invoicing software, (ii) the set-up of a new case management and case collaboration platform, (iii) optimizing the digital workplace, and (iv) building a new website.

 

For the first phase, the NAI has partnered up with Databas to implement Visma.Net, an integrated cloud-based solution that enables the NAI to automate its financial business processes and accounting operations. It is expected that the NAI users shall benefit from real-time information on the financials of pending proceedings. The go-live Visma.Net was on 1 January 2022.

 

Furthermore, several changes were made to the IT infrastructure of the NAI. End of 2021, the NAI migrated its email environment from an on-premises Exchange Server to Office 365. The NAI employees have a more user-friendly workplace and the e-mail security level was improved (i.e. separate cloud email security gateway, separate cloud O365 back-up and MFA enabled). Also, a highly secure air-gapped cloud back-up of the server environment was implemented, including a better (tested) restore time.

 

The NAI will keep you informed on the further developments of the NAI IT project in due course.

 

UPCOMING MATTERS AND EVENTS

15 February 2022 – revision of the administration costs and arbitrator fees

As per 15 February, following a bench mark study on administration costs used with various arbitration institutes in Europe, the NAI will revise its calculation method for its administrations costs. The newly envisaged mechanism for calculating the administration costs breaks with the previous stepped-tier system, whereby the financial interest of a claim placed the administration costs owed into a single tier. The new method of calculation introduces a new tiered system, whereby the administration costs are calculated through the sum of each subsequent tier until the total financial interest of the claims is reached. This leads to a unique amount of administration costs per financial interest, rather than, as is currently the case, the same administration costs for all amounts of financial interest in a given tier.

 

 

Based on the bench mark study, the administration costs will generally increase, while at the same time the administration costs remain relatively low in the lower scales to ensure access to our arbitration services. The consequence of the new method of calculation is a fairer distribution of costs via a proportionally sliding scale. The method of calculation is done via a so-called “cost calculator”. This  calculator will be placed on the website so that users can clearly and easily see in advance what the estimated administration costs will be for their claims. Additionally, the NAI will place an example calculation on its website and in Appendix A. An example calculation in any

specific case can also be sent to the users at their request.

 

On a related note, the arbitrator fees will also change as per 15 February. The new scale of fees leads to an increase in fees in the low to mid-range tiers and a decrease of fees in the higher end segments.

The new scales will be published on the website in February.

 

2 March 2022 - Young NAI webinar “Art and Arbitration”

On 2 March 2022, Young NAI will be organizing a webinar titled “Art and Arbitration”. The webinar will include a keynote speech and a panel discussion on recent developments in art and arbitration. Information on the speakers involved will be announced shortly. The registrations for the webinar will soon open, don’t forget to sign up to the Young NAI mailing list here to keep up-to-date with all Young NAI events.

 

17 March 2022 - 5 Years New Dutch Arbitration Act – Symposium

In 2020, the law faculties of the universities of Groningen, Maastricht, Leiden and Rotterdam, in collaboration with the Dutch Arbitration Association, intended to organize a symposium on the occasion of the 5-year anniversary of the current arbitration law. Due to Covid-19, the new date for this symposium has now been set on 17 March 2022The symposium will take place at The Hague Hearing Center. Our President, Professor Gerard Meijer, and our Secretary-General/Director-General, Ms. Camilla Perera-de Wit, will both speak at this event. Visit the DAA website for the full program. The session will be in Dutch. Join us in The Hague!

 

22 April 2022 - NAI-CEPANI COLLOQUIUM – SAVE THE DATE

NAI and CEPANI  have the pleasure of inviting you to their joint colloquium on 22 April 2022 in Rotterdam, on the topic of “What’s new?”, discussing the new NAI and CEPANI arbitration rules respectively as well as topical trends in arbitration more broadly. A book with the written contributions of the presentations held during the afternoon will be distributed at the colloquium. Registrations will open in the beginning of 2022.

 

1 July 2022 - Revised 2022 NAI Arbitration Rules

The NAI Arbitration Rules 2015 have been under review. The 2022 Rules are expected to enter into force on 1 July 2022. The highlights of the new Rules were discussed during the webinar on 15 September 2021. A link to a report of the webinar, published by TvA, can be found here.

 

8 September 2022 - NAI Annual General Meeting 2022

The NAI is delighted to announce that it will organize its inaugural Annual General Meeting on Thursday 8 September 2022. It will be an all-day event on institutional arbitration and speakers will include prominent arbitration specialists from the Netherlands and abroad. We will announce the date shortly and hope to see you all there.

 

RECENT EVENTS

November 2021 – Surinaams Arbitrage Instituut (SAI) celebrates 67-anniversay

In celebration of the 67th anniversary of the Suriname Arbitration Institute (SAI), NAI President Gerard Meijer and Secretary-General/Director-General Camilla Perera-de Wit were invited as guests to join the SAI virtual board meeting to share with the SAI board their views on implementing a longer term strategic vision in the world of commercial arbitration. It proved to be a highly informative session for both ends and we thank the SAI for their kind invitation.

 

September 2021 - WEBINAR: The Future of International Arbitration: the Road to Greener Arbitration and Reflections on the upcoming 2022 NAI Arbitration Rules and Recently Revised Arbitration Rules

The NAI and Young NAI webinar titled ‘The Future of International Arbitration: the Road to Greener Arbitration and Reflections on the upcoming 2022 NAI Arbitration Rules and Recently Revised Arbitration Rules’, kindly hosted by Allen & Overy LLP, was a great success.

 

Hilde van der Baan, partner A&O Amsterdam, welcomed participants to the webinar, after which Prof. dr. Gerard Meijer, President of the NAI, and Camilla Perera-de Wit, Secretary-General/Director-General of the NAI, reflected on key developments at the NAI. Lucy Greenwood, independent international arbitrator and founder of the Campaign for Greener Arbitrations, provided the thought-provoking keynote speech in which she addressed the role that we all must play in the road to Greener Arbitrations.

 

The panel discussion included: Bregje Korthals Altes-van Dijk, Board member of the NAI and partner at Ysquare, Amsterdam; Jacomijn van Haersolte-van Hof, Director General of the LCIA, London; Vanessa Foncke, partner at Jones Day, Brussels; Sophia von Dewall, counsel at Derains & Gharavi, Paris; and Thomas Stouten, partner at Houthoff, Amsterdam. The panel delved into the recent / future revisions of key arbitration rules, including the envisaged revision of the 2022 NAI Arbitration Rules. Topics included greener and sustainable arbitrations; challenge procedures; the appointment process of arbitrators; the possible role of an NAI court; expedited rules.

 

A link to a report of the webinar, published by TvA, can be found here.

 

September 2021 - The NAI signs the Green Pledge

In September 2021, Secretary-General/Director-General Camilla Perera-de Wit signed the Green Pledge on behalf of the NAI.

 

The Green Pledge is part of the Campaign for Greener Arbitrations, an initiative to reduce the environmental impact of international arbitrations.  The campaign was founded by International Arbitrator, Lucy Greenwood, in 2019, with the aim of significantly reducing the carbon footprint of the arbitration community. The campaign is made up of a group of arbitration practitioners committed to achieving sustainable change in the way arbitrations are managed. The campaign promotes awareness of the environmental impact of arbitrations and produces best practice guides on ways we all can act to minimize the carbon footprint of our practice. A Link to the Campaign for Greener Arbitrations website can be found here.

 

Secretary-General/Director-General Camilla Perera-de Wit on signing the pledge:

The NAI, as the Netherland’s premier arbitration institute, has a role to fulfill in the initiative that Lucy Greenwood has started. At the NAI we are conscious of the fact that we can contribute to by looking closely into our rules, work processes and work space to reduce environmental impact, energy consumption and waste. While I am pleased to report that all communications in arbitrations are done electronically, that we maintain a digital filing system, that the team meetings are conducted by virtual meetings as much as possible  and that virtual hearings have become a solid alternative for physical hearings, if and when needed, in the coming years the NAI will continue to pursue the goal of the green pledge in its strategy and next endeavors. The work on this is never done.”

 

September 2021 - The NAI hosts a representative of the Surinaams Arbitrage Instituut (SAI)

On 1 September 2021, Erik Jan Reuver (Treasurer of the Executive Board of the NAI) and Tomas Vaal (Director Business Operations of the NAI) hosted a meeting for Adit Moensi (Treasurer of the Executive Board of the SAI). The SAI was interested to learn about the NAI IT project, in particular  about the information gathered regarding the different case management software options. A demo on particular functionalities of an arbitration platform was provided.

 

The SAI and the NAI have entered into a cooperation agreement in August 2014 for the promotion of arbitration and other forms of ADR. Among other things, the parties exchange information for the purpose of improving the services of both institutions.

 

July 2021 - The NAI-NCC Arbitration Clause

In July 2021 the NAI and Netherlands Commercial Court (NCC) launched the NAI-NCC Arbitration Clause, through the use of which any court proceedings in the Netherlands that arise in connection with the NAI arbitration are referred to the NCC.

 

The NAI and the NCC see added value in joining forces in order to be more responsive to the users’ needs in international arbitrations. One example of how this collaboration empowers parties to make their proceedings more cost-efficient and expeditious is when, for example, an award has been rendered. Parties may choose to file a setting-aside claim, if deemed necessary, with the NCC Court of Appeal in English. Such legal actions no longer need to be dealt with in Dutch, saving the parties time and costs.

 

The Netherlands, with its long history in arbitration as a dispute resolution tool at both national and international levels, and a legislature and judiciary that are highly supportive of the use of ADR, can offer the best of both worlds: firstly, qualitative and cost-efficient arbitration in English with top-tier arbitrators and a highly experienced NAI Secretariat, and secondly, an English-language court for any post-award – and sometimes even pre-award – court litigation. This will make proceedings quicker and more cost-efficient.

 

July 2021 - The Court of Arbitration for Art (CAfA) MEDIATION OF ART DISPUTES

On 6 July 2021 CAfA organized a webinar which showcased a stellar panel of three leading mediators,  Bill Marsh, Independent International Mediator, Paul Mason, Independent Arbitrator and Mediator and Christopher To, Barrister-at-law, Gilt Chambers,  from around the world for an interactive discussion on the role of mediation and the CAfA in art disputes. What opportunities & benefits does mediation have for art disputes? What are the notable differences between arbitration/litigation and mediation? What can parties expect from the mediation process? Hetty de Rooij, Executive Officer at CAfA, moderated the session.

 

The NAI is the administrating body for any arbitrations and mediations administered under the CAfA Arbitration and CAfA Mediation rules.

 

June 2021 - NAI Jong Oranje and PwC Expert Witness Cross-Examination Training

From 11 May to 10 June 2021 NAI Jong Oranje and PwC organized the Expert Witness Cross-Examination Training. This training aimed to give participants hands-on experience in cross-examination through a mock arbitration with quantum experts from PwC. Key elements of this training were to understand how to instruct experts properly, analyze expert evidence, and identify the best way to discredit the testimony of the opposing party's expert. Participants were given the opportunity to interact with expert witnesses, counsel and arbitrators from various firms during a social gathering after the training.

The event was a great success, providing an invaluable experience to those involved.

 

May 2021 - Legal Counsel Thomas de Bekker speaks at the ELSA National Council Meeting 

On 8 May 2021, Thomas de Bekker spoke at the ELSA National Council Meeting about ADR. During the ELSA National Council Meetings, the local ELSA groups come together for two to three days of workshops organized by the national board. National Council Meetings are organized three times per year, with this edition taking place virtually. In his presentation, Thomas shared insights into the system of ADR in the Netherlands through the lens of the different services offered by the NAI. We would like to thank ELSA the Netherlands for the invitation.

 

February/March 2021 - Secretary-General/Director-General Camilla Perera-de Wit’s interview in the Dutch Arbitration Association’s newsletter on reform, innovation and collaboration

In the March 2021 edition of the Dutch Arbitration Association's newsletter, Secretary-General/Director-General Camilla Perera-de Wit was interviewed and spoke about the need for reform, innovation and collaboration. Camilla shared her views on the role of the Netherlands Arbitration Institute (NAI) in the Netherlands as well as abroad, the role of the Netherlands in comparison to other countries in arbitration, the challenges and opportunities that emerged from COVID-19, the most eminent goals of the NAI in the near future, and more. For the full read, follow this link and scroll down to read the entire interview.

 

In addition, see Camilla Perera-de Wit’s article on the NAI’s experience in adapting during the pandemic, in Mr. Onlinelink

 

February 2021 - WEBINAR CAFA: THE ROLE OF EXPERT WITNESSES IN ART DISPUTES

Leading art lawyers and art experts from around the world joined for an interactive discussion on the role of expert witnesses in art disputes. What is the function of expert witnesses in different legal systems? What types of expert evidence are required in art disputes (scientific evidence vs connoisseurship)? What are the challenges faced by expert witnesses and what are the challenges for the judge or arbitrator in weighing up expert evidence? These and other topics at the intersection of art and law were discussed by our panellists, including colourful examples from their own experience. Speakers: Andrew Onslow, Queen’s Counsel (senior barrister) at 3VB, London; Angell Xi, Partner at Jingtian & Gongcheng, Shanghai; Richard Spear, Specialist in Italian baroque art and expert witness, Washington D.C.; Sharon Hecker, Art historian and curator, Milan’Anna Bennett, Conservator and expert witness, London. The session as moderated by Martin Wilson, Chief General Counsel at Phillips Auctioneers, London.

 

January 2021 - The NAI engages with R.E.A.L. – Racial Equality for Arbitration Lawyers

The Netherlands Arbitration Institute is delighted and honored to be engaging with R.E.A.L. - Racial Equality for Arbitration Lawyers, a non-financial supporting entity. REAL is a group of global lawyers practicing in international arbitration and striving to achieve racial equality for arbitration lawyers. More information about REAL, its goals, and about who is involved can be found here.

 

December 2020 - Secretary-General/Director-General Camilla Perera-de Wit gives a Master Class at the Erasmus University Rotterdam

On Friday 4 December, Secretary-General/Director-General Camilla Perera-de Wit conducted a Master Class in the Master International Arbitration and Business Law at Erasmus School of Law. A wide range of commercial arbitration topics were discussed and looked at from different angles  (parties, arbitrator, institute), including topical issues such as virtual hearings and fundamental rules of procedure. We thank Erasmus School of Law for the invitation!

 

Publication of Arbitrators on the NAI Website

Starting January 2020, we have begun publishing the arbitrator appointments on the NAI website.

 

CONTENTS MAGAZINE FOR ARBITRATION (TIJDSCHRIFT VOOR ARBITRAGE)

The contents of TvA 2021 edition 4 can be found here.

 

 

NAI Services during COVID-19

In the context of COVID-19, the NAI follows the guidelines of the WHO, the National Institute for Public Health and the Environment (in Dutch: RIVM) and the national government. The NAI Bureau remains fully operational and works remotely in order to guarantee the continuity of our services. The health and safety of our staff and users is most important. Within the imposed restrictions with which we show solidarity, we make every effort to ensure the continuation of our services. We hereby inform you that we strongly prefer electronic and telephone communication only, until further notice. Hearings and meetings that would take place at the offices of the NAI have been relocated or will take place via virtual means. If you need to send awards and ADR decisions in hard copy by post, we kindly ask that you inform us timely in advance (prior to dispatch). We thank you in advance for your understanding and trust.

 

Contact

For more information about this newsletter and the NAI, please contact the NAI Bureau at: telephone: +31-10-281 6969 or email: secretariaat@nai-nl.org

 

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