When TAMARA comes

The newly revitalised Institute of Transport and Maritime Arbitration Rotterdam-Amsterdam (TAMARA) is ready to press its claims as a centre of global maritime arbitration

By Professor Maarten Claringbould*

THE Dutch maritime community has historically beat a path to London to settle maritime disputes. Most famously, Admiral de Ruyter, Holland’s most celebrated naval commander, sailed up the Thames in the seventeenth century to push for England’s surrender during one of the many wars between the two nations. By Dutch accounts, he was given a respectful reception by the burghers of London.

London still welcomes members of the international maritime community seeking justice, although most arrive in the city with less ambitious demands than de Ruyter’s. But why should mariners from Holland travel all the way to London to settle disputes when there is an equally effective alternative at home?

TAMARA was founded in 1988 to offer the Dutch transport industry an arbitration service that was more relevant to its needs - Dutch arbitrators applying Dutch legislation to settle disputes. TAMARA’s aims were bolstered by new arbitration legislation in 1986 that led to a more liberal legal regime which allowed the parties in a dispute more freedom to choose a method of dispute resolution. This has encouraged greater use of the services of arbitrators in Holland.

Arbitration proceedings under the TAMARA rules are simple, although it should be pointed out that the rules only apply to the actual proceedings. The dispute itself has to be decided in line with the legislative regime agreed upon by the disputing parties.

A TAMARA arbitration is started when a copy of the claimant’s notification is received by TAMARA’s registrar. From that moment on, legal action will be considered to be under way, preventing it from becoming time-barred if a time limit is applicable. Notice of arbitration has to be sent in writing to the defendants, stating that the dispute will be settled under the organisation’s rules and naming the arbitrator appointed.

The defendants are invited to appoint their arbitrator within 21 days. The choice of arbitrator is entirely up to the individual parties and is not subject to any special conditions. If a potential arbitrator declines the appointment, an arbitrator will be appointed by the president of the district court if requested to do so. Once the arbitrators have been appointed, they chose a third arbitrator who will act as chairman. The parties involved in the dispute may also agree on a sole arbitrator.

The actual arbitration proceedings themselves are governed by TAMARA’s rules of procedure, which allow arbitrators a high degree of flexibility. The customary course of action is to exchange written submissions followed by hearings. The arbitrators are obliged to ensure a fair hearing for all and are not permitted to discuss the case with any of the parties separately. Expensive discovery proceedings are not known under Dutch law.

Complaints against the arbitration proceedings can be lodged with TAMARA’s board, which will issue binding directives to one or more of the arbitrators.

Once a decision has been reached, the final award is lodged with the district court in whose jurisdiction the case was heard. Each of the parties involved can apply to the president of the district court for an enforcement order, which ensures the award can be enforced in the same manner as a regular court judgement. As the Netherlands has ratified the New York Convention of 1958, a TAMARA arbitration award can be enforced in any of the one hundred-plus countries that are currently signatories of the convention.

The losing party in a TAMARA arbitration has to pay the arbitrator’s costs, as well as the costs incurred by the winning party, up to an amount considered reasonable by the arbitrators. Complaints about costs are directed to the TAMARA board, whose decision is final.

TAMARA itself gains nothing from the proceedings. It is run on as little as $15,000 a year. The forty participating transport organisations pay an annual fee of around $175, which covers most of TAMARA’s costs.

There are clear logistical advantages for Dutch interests who settle a dispute through arbitration on home soil. Flying out experts and witnesses to the UK to testify in front of London-based arbitrators takes a fair chunk out of the business day. Up to three hours can be lost travelling from Rotterdam to London, when a short taxi ride would suffice if the case were handled by Dutch arbitrators. Moreover, the price tag for airfares will be many times higher than that for domestic travel, while London lawyer fees are also likely to be higher than those of their Dutch colleagues.

After years of anonymity, TAMARA is flexing its muscles and once more has started to actively promote its activities.

Speed is another advantage. A case handled locally will certainly reach a swifter conclusion than if it is handled by foreigners, under foreign law on the opposite shores of the North Sea. And speed is what the maritime industry wants.

However, TAMARA is aiming to broaden its appeal, both domestically and internationally. After years of anonymity, the organisation is flexing its muscles once more and has started to actively promote its activities. It has published a book listing the participating transport organisations, along with the names and specialities of seventy arbitrators based in the Netherlands, and has adopted a co-operative stance towards the press.

TAMARA hopes that its heightened profile will reach across Holland’s borders. There is no reason why Dutch transport law should stand in the shadow of English law. There is no need for the international maritime community to go to London as soon as a dispute raises its head. TAMARA is keen to point out that Book 8 of Holland’s civil code is the world’s most modern maritime code. It is as well-equipped to deal with disputes between parties of any nationality as is English law, which dates back to the days of de Ruyter.

To encourage the use of the Netherlands in arbitration proceedings, TAMARA is promoting a standard arbitration clause for inclusion in transport contracts. The clause states that any dispute arising out of or in connection with the agreement will be referred to arbitration in Rotterdam or Amsterdam in accordance with TAMARA rules. There is also a shorter version which allows another location to be nominated, although it must be in the Netherlands. Already, the clause is starting to crop up in transport contracts, and TAMARA is confident that this trend will continue.

London is still the undisputed centre of maritime arbitration, but how long will it remain so? The future may see a shift towards Dutch arbitration when TAMARA comes.

TAMARA can be contacted at PO Box 30025, 3001 DA Rotterdam, the Netherlands. Tel: +31 10 405 7654, Fax: +31 10 414 5754

Professor Maarten Claringbould is a partner with Rotterdam-based law firm Nauta Dutilh and is a member of the TAMARA board