In <span class="news-text_italic-underline">ECLI:NL:GHDHA:2025:1769</span>, the Hague Court of Appeal rejected an application to annul an arbitral award in which the tribunal had declined jurisdiction for lack of a valid arbitration agreement. The Court confirmed that, under Dutch law, such awards cannot be set aside, aligning with the earlier judgment of the Dutch Supreme Court in <span class="news-text_italic-underline">HR 21 April 2023, ECLI:NL:HR:2023:636</span>.
The dispute arose from an alleged expropriation by Venezuela of assets belonging to a Claimant holding both Spanish and Venezuelan nationality. The Claimant initiated a UNCITRAL arbitration seated in the Netherlands under the Spain–Venezuela Bilateral Investment Treaty (“<span class="news-text_medium">BIT</span>”), seeking approximately USD 892 million in compensation.
A key jurisdictional issue before the arbitral tribunal concerned whether the Claimant qualified as an “investor” under the BIT, given their dual nationality. The tribunal concluded that the Claimant’s dominant and effective nationality was Venezuelan, thereby precluding claims against their own state. It accordingly determined that no valid arbitration agreement existed and issued an award declining jurisdiction.
The Claimant subsequently applied to the Hague Court of Appeal to set aside the award. While Dutch arbitration law permits annulment of awards rendered without a valid arbitration agreement, the Court clarified that this provision does not extend to cases in which the tribunal itself finds that no arbitration agreement exists and therefore declines jurisdiction.
In line with the Supreme Court’s 2023 decision, the Court of Appeal held that an award rejecting jurisdiction cannot be subject to set-aside proceedings. The Supreme Court had previously reasoned that, where no valid arbitration agreement exists, jurisdiction rests with the state courts and thus there is no arbitral award capable of annulment. A related challenge before the European Court of Human Rights, based on Article 6 of the European Convention on Human Rights, was declared inadmissible.
The Hague Court of Appeal’s ruling reinforces that, in the Netherlands, awards declining jurisdiction for lack of a valid arbitration agreement are final and cannot be reviewed through annulment proceedings. This position differs from approaches taken in other jurisdictions such as France, Canada, Sweden, Singapore, Switzerland, England and Wales and the United States.
<span class="news-text_medium">Case Reference:</span> <span class="news-text_italic-underline">ECLI:NL:GHDHA:2025:1769</span> (The Hague Court of Appeal, 16 September 2025).
