Decision Tree
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.
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.
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.
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.
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.
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.
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.
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.
Question 9
Do you prefer a quick in principle final decision to the possibility of appeal?
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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.
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.
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.
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