9 julho 2018 Marc Noldus ArbitrationLinks

Dutch Supreme Court applies strict interpretation of the (alternative) time limit for filing for the annulment of an arbitral award

In Supreme Court 15 June 2018, ECLI:NL:HR:2018:914 (Bursa/Güris et al.) the Dutch Supreme Court ruled in favour of a strict application of the (alternative) time limit for filing for the annulment of an arbitral award. If the first time limit of three months after the deposit or dispatch of the award has lapsed, a claim for annulment cannot be filed until the start of the second time limit of three months after service of the award and leave for enforcement.

Background

The municipality of Bursa, a large city in north-western Turkey, entered into a contract with a consortium of construction companies for the construction of an urban railway system in its municipality (the ‘Bursa Light Rail System’). The construction agreement contains a submission to arbitration in accordance with the Rules of Arbitration of the International Chamber of Commerce (ICC) of 1 January 1998. The place of arbitration is The Hague.

The Bursa Light Rail System project, which dates back to 1997, has led to a number of disputes. This has resulted in several ICC arbitral awards as well as several annulment proceedings before the Dutch courts. The present case relates to an arbitral award of 11 July 2011 in which Bursa was ordered to reimburse a number of the construction companies, Güris et al., for additional costs incurred as a result of a delay of the project.

On 3 October 2011, Güris et al. deposited the arbitral award at the registry of The Hague District Court. Güris et al. then requested leave for enforcement of the award before the interim relief judge of the same court, which it granted on 6 June 2012. Güris et al. also filed for the recognition and enforcement of the award before the Bursa District Court in Turkey, which it granted on 30 May 2013.

Annulment proceedings

On 19 September 2012, Bursa filed a claim for annulment of the arbitral award before The Hague District Court on the grounds that one of the arbitrators had not been impartial and independent (under current Dutch procedural law, a claim for annulment is filed before the competent Court of Appeal). The Hague District Court rejected the claim for annulment, and that decision was upheld in appeal proceedings before The Hague Court of Appeal. The Hague Court of Appeal ruled that Bursa lacked a cause of action because the claim for annulment was not filed within the applicable time limits.

Under Dutch procedural law applicable to the award against Bursa (article 1064(3) Dutch Code of Civil Procedure (DCCP) (old), currently article 1064a(3)), there are two time limits for filing a claim for annulment:

  • The first time limit is three months, commencing on the date the award is deposited with the registry of the district court of the place of arbitration. Under the current article 1064a Dutch Code of Civil Procedure, however, this time limit commences on the date the award is dispatched to the parties. The date commences on the date the award is deposited with the registry of the district court only if parties have agreed to such deposition.
  • The second time limit is three months, commencing on the date the award is served together with a leave for enforcement.
    Bursa had filed the claim for annulment after the first time limit had lapsed. The Hague Court of Appeal ruled that Bursa had not shown that the award and leave for enforcement were served on Bursa and therefore failed to show that the second time limit had commenced. As a result, Bursa’s claim for annulment fell within neither of the two time limits.
Supreme Court decision
The Supreme Court first addressed whether there are circumstances under which annulment proceedings may be brought after the first time limit has lapsed, but before the second time limit has commenced (i.e. the award and leave for enforcement are served). Bursa argued that this is the case if it is ‘sufficiently clear’ that the award will be enforced.
 
The Supreme Court rejected this argument and resorted to a textual interpretation of the second time limit. The wording of article 1064(3) DCCP (old) (currently article 1064a(3) DCCP) refers to a claim for annulment being brought “within three months after” service of the award and leave for enforcement. The use of the words “within” and “after” shows that this claim must be brought within and not prior to the second time limit. Additionally, Bursa’s argument would lead to practical difficulties because the timeliness of a claim for annulment would depend on the subjective criteria that it is ‘sufficiently clear’ that enforcement will take place.
 
Subsequently, the Supreme Court addressed whether a claim for annulment may still be admissible if the second time limit commences during annulment proceedings. Bursa had argued that the Bursa District Court had in fact served its judgment containing leave for enforcement while the annulment proceedings before The Hague District Court were still pending. For this reason, it held that its claim for annulment was brought timely.
 
This argument was rejected as well. Referring to its observation that a claim for annulment must be brought within the second time limit, the Supreme Court held that the fact that the second time limit had commenced during the annulment proceedings has no bearing on the timeliness of the claim for annulment if this was brought prior to the commencement of the second time limit.
 
Comments
A party seeking the annulment of an arbitral award seated in the Netherlands has two occasions to do so. Its first opportunity is to file a claim for annulment within three months after the award has been dispatched to the parties or deposited with the competent district court. Alternatively, it may file a claim for annulment within three months after the award and a leave for enforcement have been served.
 
The Supreme Court’s ruling shows that these two time windows are applied strictly. A party missing the appropriate time limit will be declared inadmissible in its claim for annulment. This includes the case where the claim is filed after the first time limit has lapsed but before the second time limit has commenced.
 
A party failing to initiate annulment proceedings within the first time limit will therefore need to wait until the award and leave for enforcement have been served before filing a claim for annulment, even it is clear that the counterparty will enforce the award in the future. If a party nevertheless files a claim for annulment before the second time limit has commenced (but after the first time limit has lapsed), it is advisable to file a new claim for annulment once the award and leave for enforcement are served.