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Decision Tree

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Question 1

Is your contracting party based in the Netherlands?

If yes: then no clear preference for arbitration or governmental jurisdiction, barring other reasons that might induce someone to choose arbitration. Then to question 7.

If no: then there may be a clear preference for arbitration. Then where the other party is located is important. This should then be asked out. For that, then question 2 is important.

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Question 2

Is your contracting party based in the EU?

If yes: then there is no preference for governmental jurisdiction or arbitration as far as recognition and enforcement is concerned. Then continue with question 3.

If no: then there may be a clear preference for arbitration. For this please continue with question 4.

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Question 3

If your contracting party is based in the EU, do you care whether you have to litigate in a Dutch court or a foreign court if a dispute arises?

If so: this may lead to a choice of arbitration. Moving on to question 6.

If no: then there is no immediate reason to choose arbitration in this context. Continuing with question 7.

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Question 4

Is your contracting party based in Mexico, Singapore or the United Kingdom?

If yes: then the same applies as in question 2. Continue with question 5.

If no: then continue with question 6.

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Question 5

If your contracting party is based in Mexico, Singapore or the United Kingdom, do you care whether to litigate in the Dutch courts or courts in any of these states if a dispute arises?

If yes: then the same applies as for question. Then continue with question 6.

If no: then continue with question 7.

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Question 6

If it matters to you whether you litigate before the Dutch court or foreign court, would this be a reason to consider an alternative method of dispute resolution if your contracting party is reluctant to choose the Dutch court?

If yes: then arbitration is a clear alternative, continue with question 7 to test this further.

If no: then continue with question 7 to see if there are other reasons to choose alternative dispute resolution.

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Question 7

Is it important to you that any dispute with your contracting party be treated confidentially in principle?

If yes: reason to choose arbitration.

If no: at this point no preference for arbitration / governmental jurisdiction.

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Question 8

Is it important to you that you can in principle influence the planning and design of the proceedings?

If yes: reason to choose arbitration.

If no: no preference for arbitration / governmental jurisdiction at this point.

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Question 9

Do you prefer a quick in principle final decision to the possibility of appeal?

Note: this question is subject to caveats: (i) sometimes an appeal is also possible in arbitration (but not in ICC); (ii) in arbitration there is the possibility of setting aside an arbitral award, a procedure in the state court. Many users with little knowledge of arbitration may also consider that a form of appeal.

If yes: reason to choose arbitration.

If no: reason for choosing governmental jurisdiction.

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Question 10

Do you find it convenient to be able to litigate in English?

If yes: then this may be a reason for arbitration (alternative is NCC, which may come out, depending on answers to other questions).

If no: this does not necessarily preclude arbitration.

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Question 11

Do you find it objectionable to advance costs for the person who settles the dispute?

If yes: reason for choosing governmental jurisdiction.

If no: reason for choosing arbitration.

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Question 12

In public proceedings, often only a fraction of the actual costs incurred is reimbursed to the winner; in arbitration, in principle, all costs are reimbursed. For the party that prevails this can be favourable, for the party that loses it can be unfavourable. Do you find this objectionable?

If yes: reason for choosing governmental jurisdiction.

If no: reason for choosing arbitration.

Thank you for participating!

Test

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