On the face of it, this has the potential to create great uncertainty for all parties who, together with Dutch companies (and Dutch companies that enter into contracts with each other) on many of the established international trade treaties providing for an Arbitration Procedure in English. Is that as bad as the title? With the support of Marcel Verhagen, the lead Dutch merchant marine lawyer at Dock Legal Experts in Rotterdam, this article attempts to answer this question and explain the impact of the decision of the Supreme Court of the Netherlands. In the usual way, the owners then tried to impose the price in Holland. Under Dutch procedural law, a petition was filed with the Court of Appeal (where the charterers had not appeared once again), which concluded that the award was not complete because there was no valid arbitration agreement. P asked for recognition of the prize in Poland. On 29 December 2015, a regional court issued the execution. It found that, in accordance with Article II, paragraph 2, of the New York Convention, the parties may enter into an arbitration agreement by e-mail (in this case on the scanned documents signed by the parties). P conducted arbitration proceedings against W. In a partial judgment, the Tribunal found jurisdiction within a valid and effective arbitration agreement. He insisted that the manager had underestimated or suspected that he had acted on W`s behalf and that he had entered into an arbitration agreement. In another partial judgment, she ordered W to pay P. The Supreme Court`s decision is an important contribution to the debate over the form of arbitration agreements.
The court confirmed that under the New York Convention, an e-mail exchange was sufficient to conclude such an agreement. He noted, however, that a recent federal case in New York, Couch v. AT-T Services, Inc. (decided on December 31, 2014) specifically addressed this issue. The 62-year-old had worked for AT-T from 2008 to 2012, when his employment was terminated. In December 2011, AT-T sent an e-mail to its employees, including the applicant, informing them that all disputes between the company and its employees would be resolved by binding arbitration from that date. The e-mail contained the title “Action Necessary: Arbitration Agreement” and declared arbitration as a more informal, perhaps quicker, alternative to legal action. The e-mail also noted that employees were free to refuse the arbitration agreement and to rule against the abandonment of their right to a court or jury by following a link in the e-mail and recording their decision to opt out. The email also contained a link to the arbitration agreement for employees to verify and stated that all claims related to the employment relationship would be covered.
Employees were given the opportunity to press a button that said they had admitted to seeing the agreement. The e-mail ended with the indication that the opt-out period was February 6, 2012. The Supreme Court stressed the importance of the principle of dissociability of an arbitration agreement, implying that the formal validity and effectiveness of the agreement must be considered separately from the main agreement. Accordingly, the Tribunal concluded that the granting of leave to enter into an arbitration agreement must be considered separately and, in this case, on the basis of Polish law.