Arbitral tribunal's negative jurisdictional decision not reviewable by the Dutch courts (Plaintiff v Venezuela)
Arbitration analysis: Investment arbitrations are regularly seated in The Hague. In one such case brought by an investor against Venezuela, the Court of Appeal of The Hague reaffirmed that negative jurisdictional decisions (whereby an arbitral tribunal declines jurisdiction) are not subject to review in setting aside proceedings before the Dutch courts. This is consistent with a 2023 judgment of the Dutch Supreme Court, which confirmed the continuing validity of this rule of Dutch law (ECLI:NL:HR:2023:636). As a result, investors who receive a negative jurisdictional ruling in an investment arbitration, as well as other parties in Dutch-seated arbitrations in which the arbitral tribunal declines jurisdiction, cannot seek the setting aside of such rulings by the Dutch courts on any of the setting aside grounds. Although the 2015 amendments to the Dutch Arbitration Act recognise arbitral awards denying jurisdiction as arbitral awards for the purpose of the Act, this did not alter the longstanding rule of Dutch arbitration law that a party can only challenge an arbitral tribunal's decision upholding jurisdiction in setting aside proceedings before the Dutch courts. Written by Hetty de Rooij, lecturer and external PhD researcher at Leiden University.