Getting some answers about arbitration: 

a conversation with arbitration specialist Bas van Zelst

As soon as we sit down with Bas to pick his brains about the role of arbitration in dispute resolution, he starts by giving us a couple of general statements to set the scene. The first relates to a question that he is often asked: what is better – arbitration or litigation? “The key point is that it’s really a matter of ‘horses for courses’ in that dispute resolution is really about finding the right fit to the particular dispute or disagreement. I would also add mediation to the dispute resolution equation.

In mediation, the parties themselves decide whether to settle the dispute. In arbitration, the arbitrator issues a binding decision. That makes mediation less suitable for certain types of disputes.”

The second point Bas wants to make is more of an opinion, one that goes against the commonly shared view that legal contracts are set in stone: inflexible and immovable. “Parties include a certain type of dispute resolution mechanism in their initial contract. However, if and when a dispute arises months or years later, the setting may now actually be much more suitable to a different type of dispute resolution,” he says. “So don’t take the dispute resolution mechanism that you agreed to at the contracting stage as final. Have a conversation about what fits the dispute best; the situation might have changed.”

The rigidity of the courts vs. the agility of arbitration

This opinion outlines a crucial characteristic of arbitration as a dispute resolution method: the value of staying flexible when discussing processes. This reflects a significant difference between arbitration and litigation. “Courts have their standard set of rules that they apply rather indiscriminately to every case they deal with. This is the good thing about arbitration: it offers flexibility to the parties in agreeing on the procedure most suited to an effective resolution of the dispute.”

We ask Bas if there are any other explanations that some business-to-business disputes are better resolved by arbitration. Confidentiality and international enforcement are his two first answers. “Having the arbitration proceedings take place outside the public eye is another reason for arbitration to be preferred. And the New York Convention of 1958 – which is applicable in 172 jurisdictions worldwide – means that arbitral awards can be enforced internationally. This is a big upside.”

What about the costs?

According to Bas, the subject of costs raises one of the biggest misconceptions that businesses have about arbitration. “That arbitration is per se more expensive than going through the courts. This is not always true – especially when you consider the value of expertise, confidentiality and the finality of the decision. The idea of arbitration is that it is a one-stop-shop; there’s no appeal, the decision is final.”

We wrap up talking about the characteristics of arbitration by looking at how it is very much outcome-focused. “Judges tend to be generalists right by nature, whereas arbitrators are appointed for their particular expertise – they have actual knowledge on the particular topic and offer the parties guidance on how to best resolve their dispute.” Moreover, he says, arbitrators are very much mindful of preserving the commercial relationship between the two parties. “Litigation is about the past, but businesses like to think about the future.”

Focusing on the Netherlands

Our conversation with Bas turns towards the Netherlands. We often hear the country termed a ‘seat of arbitration.’ What does that actually mean? “The seat of arbitration refers to where the arbitration formally takes place and the arbitration law – the so-called lex arbitri – that is applicable in that jurisdiction. The arbitration act in that jurisdiction sets out formal requirements for the arbitration process; for example on how arbitrators are appointed. Oftentimes, parties deviate from default provisions in the applicable arbitration act. They may do so, for instance, by reference to the rules of an arbitration institute – such as the ICC. These rules provide specific arrangements – including on appointment of arbitrators.”

How does the Dutch legal framework support arbitration compared to other jurisdictions?

“The Netherlands has a rich history as a trading nation, and today this translates to having a supportive approach to international business,” answers Bas. “The Netherlands is an arbitration-friendly jurisdiction. The Arbitration Act – revised in 2015 – has helped make cases less susceptible to be set aside. Likely thousands of arbitration cases are conducted every year in the Netherlands. My research provides that only a very small percentage of the resulting awards get set aside. I think that’s good news for parties seeking to resolve their disputes within the Dutch arena.”

A relevant player in this Dutch arbitration arena is the ICC, which offers arbitration services and all the associated administrative matters. What sets the ICC apart, says Bas, is the concept of scrutiny. “The ICC court assesses arbitral awards for quality, providing suggestions to arbitrators on how the award can be improved. This ensures that the arbitral awards stand up to further scrutiny in, for instance, the context of a normal proceedings with the state court.”

Arbitration: a broader tool for peace?

For us, the link between arbitration and the ICC is tangible. The first is an often international dispute resolution process known for its balanced and constructive methods. The second is an international organisation borne out of the desire to promote peace through international trade. In fact, the ICC often speaks about arbitration as a tool for peace.

How does Bas see this connection? “Historically, arbitration has served to help parties with broad opposite perspectives resolve disputes. This idea – of resolving disputes amicably – aligns well with the ICC’s broader mission as the World Business Organization: to create peace through trade. You only need to open a newspaper to see what happens when conflicts go unresolved.”

As Bas reminds us, arbitration is more than a mechanism for resolving disputes – it’s a practice rooted in dialogue, expertise and mutual respect, principles that underpin the ICC’s global mission.

Read more.

DAA 2015 Quo Vadis? An Empirical and Substantive Analysis of Decisions on Applications for Set-Aside of Arbitral Awards under the Dutch Arbitration Act of 2015: Has the Dutch Legislator Reached Its Objectives?

Bas van Zelst

Journal of International ArbitrationVolume 42, Issue 5 (2025) pp. 661 – 690

httpss://doi.org/10.54648/joia2025043

Bas van Zelst is co-founding partner at Enhance Arbitration in Amsterdam. He acts as counsel and arbitrator in investment and commercial matters – including construction cases. He is frequently engaged as expert and has particular experience in matters pertaining to the annulment of ISDS awards. Bas combines his legal practice with his position as professor of Dispute Resolution and Arbitration at Maastricht University.

He is a member of the editorial board of the Dutch Journal on Arbitration (TvA) and sits on the advisory board of the Netherlands Arbitration Institute. Bas regularly acts as expert in relation to both Dutch and foreign seated arbitration proceedings.

He is also a CEDR accredited mediator. Bas holds an LLm and a PhD degree from the University of Amsterdam. He was a visiting researcher at Harvard Law School in 2006/2007 and a visiting professor at the University of British Columbia (CA) in 2017.