Willem van Baren: successful arbitration relies on knowing how the wheels turn

As a true beta with skilful hands, Willem van Baren trained as a dentist and worked in private practice, while simultaneously pursuing a law degree to satisfy his appetite for intellectual challenges. He went on to attain a degree in health policy at Harvard. And that led him ultimately to change careers to become a litigator at a leading law firm. There he built an in-house transport and insurance practice that covered corporate and commercial litigation along with arbitration. He also served as President of the Netherlands Arbitration Institute for over six years. Upon his retirement in 2016, he became a full-time independent arbitrator.

Benefits of arbitration

His extensive experience with dispute resolution, particularly within the aviation and maritime industries, means Willem can certainly say a thing or two about why parties should opt for arbitration as the preferred way of resolving possible disputes. “I believe arbitration has three main advantageous aspects,” he notes. “First, arbitration occurs with full confidentiality. Second, parties have a say in which specific experts will be appointed to handle their case. And third, the New York convention makes arbitration attractive for international trade.”

Under the New York convention arbitration rulings are enforceable in more than 150 countries without any interference from local rules and regulations. This provides enhanced security for the parties involved. Another reason for including the Netherlands as location, and the Dutch system, stems from parties preferring neutral grounds in the unfortunate event that dispute resolution becomes necessary. Willem adds however: “This is of course mostly the case when there is some sort of business connection to the Netherlands.”

Tricks of the trade

“Even though the Netherlands has a dedicated Maritime Chamber in Rotterdam, with broad industry expertise, it always remains to be seen whether the appointed experts do have specific know-how about the topic at hand,” he continues. “I believe in-depth industry knowledge and expertise are important in complex cases. Knowing the tricks of the trade leads to a better understanding of specific interests, which in turn yields improved efficiency and high-quality rulings. It’s one of the reasons why I advise parties to opt for arbitration rather than going to court to settle disputes.”

Another arbitration upside is the possibility of taking cultural differences or customs into account. “With arbitration parties have the opportunity to configure the process to their own preferences,” he points out. “This opens the door to finding middle ground where both parties feel comfortable, all adding up to a smoother process and better results.”

Well-thought-out contracts and clauses

“Some ground rules do have to be met for arbitration to commence,” Willem cautions, “particularly when parties decide to deviate from standard general terms and conditions. Sometimes arbitration clauses don’t receive enough attention, and this can lead to less well-thought-out choices that might result in ‘pathological clauses’. Examples might be incorrect wording or contradictory choices in applicable law, leading to a clause no longer being legally binding.

“When arbitration is agreed upon, this obviates any recourse to the courts, but only when the relevant clause and the process comply with the legal framework. If not, a choice for arbitration could be overruled and parties might then find themselves in court after all.” That’s why Willem stresses the importance of keeping dispute resolution clauses top-of-mind when drafting (commercial) contracts, with sound and well-thought-out arbitration clauses.