e-Court Escrow Fees

The escrow relates to a prepaid fee equal to lawyer/counsel appeal fees and is payable by both parties.

Enforcement of a decision by the e-Court arbitrator can be encouraged in all provinces by awarding the "winning" party, the 'loosing' party's prepaid portion of the escrow amount. This applies only when the 'loosing' party, whilst firstly agreeing to abide by the e-Court litigation process does not honor the judgement of the e-Court arbitrator either with regards the standard or appeal procedures, making enforcing not possible. Moreover, the prepaid escrow portion by the "winning" party, will be returned to the 'winning' party at the same time of the e-Court decision with regards the standard or appeal procedures. The escrow money received by the 'winning' party will be used to pay for council costs incurred by the "winning" party to litigate in e-court and/or a traditional government courts. In the unlikely event that there exist a claim and counter claim between parties and enforcing the decision by an e-Court arbitrator is not possible then the prepaid escrow amounts will be used to pay for council fees of both parties to litigate in a traditional government court.

The Netherlands is arbitration-minded. Labour arbitration, as practised in the United States of America, is unknown in the Netherlands. In the commercial field, however, the use of arbitration is widespread. This may be seen from the great number (well over 100) of specialized arbitral institutions.1 The general arbitral institution is the Netherlands Arbitration Institute, the rules of which contain the same list-procedure for the appointment of arbitrators as the Rules of the American Arbitration Association.' Another indication of the popularity of arbitration is the existence, since 1919, of an arbitration periodical which publishes not only articles on arbitration and court decisions on arbitration, but also extracts from interesting arbitral awards, either ad hoc or from one of the many arbitral institutions.

Of course, where necessary, the identity of the parties is fully camouflaged. Thus, alongside the jurisprudence of the courts there also exists in the Netherlands a published arbitral jurisprudence. This is, by Western standards and procedures, quite exceptional. The development of arbitration in the Netherlands has been greatly favoured by the recognition of the arbitral clause since the existing arbitration legislation was enacted in 1838. No further submission is needed once a dispute, covered by the arbitral clause, has arisen. Another important factor is the favourable attitude of the courts towards arbitration. Whenever possible, the courts uphold the arbitration result; consequently, setting aside procedures are seldom successful.

Why then has the Netherlands decided to revise its arbitration legislation, which is contained in the Code of Civil Procedure of 1838?5 One of the reasons is that the arbitration law of the Netherlands cannot be understood from these articles alone. To a great extent, the Dutch arbitration law has been developed by the courts. This situation is unsatisfactory, especially for foreign parties. It requires quite some effort, as recently experienced when the Iran-USA Claims Tribunal took its seat in The Hague, to understand the actual arbitral situation in the Netherlands.6 Furthermore, arbitration as practised today differs in many aspects from earlier arbitration practice. This creates problems the courts cannot solve under existing legislation. The intervention of the legislature is, therefore, required to make arbitration function according to present day needs.

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