Openingstoespraak jaarlijkse P.R.I.M.E. conferentie

Toespraak | 28-01-2013

Ladies and gentlemen,

It gave me great pleasure to accept P.R.I.M.E Finance’s kind invitation to open this year’s conference. It is an honour to address such distinguished practitioners, academics, judges and legislators, who all influence the day-to-day functioning of the international financial markets. I see that many members of the Panel of Experts are present as well. A very warm welcome to The Hague, the legal capital of the world.

We are gathered here for a two-day conference in the Peace Palace. As a seat of international law, the Palace is home to the International Court of Justice, the Permanent Court of Arbitration, the Hague Academy of International Law, and the extensive Peace Palace Library. It is also a regular venue for special events in the field of international policy and law, including the annual conference of P.R.I.M.E. Finance. It is always a pleasure to be here.

In January last year the former Minister of Finance, Jan Kees de Jager, opened the first annual conference. In no time P.R.I.M.E. Finance has succeeded in establishing a fine tradition in which a member of the Dutch government opens the annual conference, welcomes the guests and gives a presentation.

Last year’s event was a great success. Financial experts learned about the legal aspects of dispute settlement in the context of complex financial transactions. At the same time legal experts were introduced to the technical aspects of complex financial transactions. In other words: the conference built a bridge between different experts. This is particularly appealing to me as ‘Building bridges’ is the title of the coalition agreement of our newly formed government, which consists of liberals and social democrats.

As you may know, last year I presented a bill to modernise Dutch arbitration law. I received many reactions, from P.R.I.M.E. Finance and others. I am proud to say that in general, the tone of the response was positive. I was able to build upon constructive criticism to finalise the bill. It will be submitted to Cabinet for approval on the first of February this year. Once Cabinet has given its approval, the bill will be sent to the Council of State for advice. If all goes well, I will be able to present my bill to Parliament this summer. Strictly speaking, the contents should remain secret until then.

However, I would like to share some of the ideas behind it. In times of financial crisis and recession it is particularly important to create efficient forms of dispute resolution based on expert knowledge. The modernisation of arbitration law may be seen in that context.

I believe my bill will make the Netherlands an even more attractive place to settle disputes, both national and international. The rules it sets out are based on the well-known and widely accepted Uncitral Model Law on International Commercial Arbitration. The bill is flexible where possible and strict where necessary.

One of its key features is that it provides for arbitral awards to be challenged at one instance only, that is before the competent court of appeal. However, if the parties have so agreed, they may lodge a further appeal with the court of cassation. Let me be absolutely clear on this point, this is not mandatory. Under the current legislation an arbitral award may be challenged at three instances. I believe my bill makes arbitration more efficient, less time-consuming and more cost-effective.

This aim was reflected in the bill and gained the necessary support, including that of P.R.I.M.E. Finance. This may be reassuring, but equally important, of course, is the way I have dealt with the concerns expressed. P.R.I.M.E. Finance brought at least three points to my attention, namely:

• professional requirements for arbitrators

• challenging arbitrators and

• depositing arbitral awards.

The original bill stipulated that at least one arbitrator should hold a Master’s in law or a comparable degree. P.R.I.M.E Finance and other stakeholders rightly pointed out that this provision unnecessarily restricts the ability of parties to compose the tribunal as they see fit. High-quality expertise regarding complex financial products is often key, especially in financial-market litigation. The parties themselves should be able to determine the specific expertise required for their case. So my bill will not prescribe formal requirements for arbitrators.

Under the original bill, it was not possible to challenge an arbitrator through a procedure administered by the arbitration institution itself. The parties had to apply to the competent Dutch court. Interested parties, including P.R.I.M.E. Finance, pointed out that this is not in step with international practice and might cause unnecessary delays. So my bill allows independent arbitration institutions handling a dispute to decide on such a challenge. I believe this is a step forward.

Last but not least, I would like to mention that depositing arbitral awards with court registries – a relic from the past – is no longer necessary. Practice has shown that parties to international disputes find this obligation an inconvenient burden. Having said that, parties may of course agree to deposit an arbitral award. In this regard, my bill is in line with the suggestion put forward by P.R.I.M.E. Finance: an opt-in.

By improving Dutch arbitration law as I have described, I sincerely believe the Netherlands will become an even more attractive location for international arbitration in general and for international arbitration in the field of complex financial transactions in particular. Arbitration is an excellent way of resolving disputes that would otherwise go to the civil courts.

I regret to say that I am unable to stay after this short opening presentation. According to your website however I leave you in the capable hands of:

• Lord Woolf of Barnes, former Lord Chief Justice of England and Wales,

• Professor Jeffrey Golden, Chairman of the Management Board of the P.R.I.M.E. Finance Foundation and Visiting Professor at the London School of Economics and Political Science,

• Mr Daniel Cunningham, partner at Quinn Emanuel Urquhart & Sullivan,

• and other distinguished speakers and P.R.I.M.E. Finance Panel Members.

I am sure that their speeches will provide much-needed food for thought. I wish you a pleasant stay and a productive conference. May the close cooperation between different experts offer fertile ground for P.R.I.M.E Finance and keep the panellists from making arbitrary decisions!

Thank you.