Can I stop arbitration in the Netherlands if the clause was in fine print and never explained?

Hello,

This is a common issue, and the answer depends heavily on whether you signed this contract as a Consumer or as a Business. Dutch law (specifically the Burgerlijk Wetboek or Civil Code) offers specific protections against fine print arbitration clauses, but the rules differ significantly between the two groups.

Here is a breakdown of your options to stop the arbitration:

1. If You Are a Consumer (B2C)

You have very strong protection under Dutch law regarding arbitration clauses hidden in general terms and conditions (Algemene Voorwaarden).

- The Black List (Zwarte Lijst - Art. 6:236 sub n BW): Under Article 6:236 sub n of the Dutch Civil Code, an arbitration clause included in general terms is considered unreasonably onerous (and therefore voidable) unless it explicitly gives you a period of at least one month to choose the state court instead of arbitration after the company invokes the clause.

- The Strategy: Check the specific wording of the clause. Does it say you have one month to opt for the civil court? If this specific wording is missing, you can likely declare the clause void (vernietigen) and force the matter into the regular Dutch courts, which are generally cheaper than arbitration.

2. If You Are a Business (B2B)

If you signed as a business, the Black List does not apply directly, and saying I did not read it is generally not a valid defense in the Netherlands. However, you still have two potential defenses:

- The Reflex Effect (Small Businesses): If you are a very small business (similar to a consumer in size/scope), a judge might apply the consumer protection rules by analogy (reflexwerking), though this is not guaranteed.

- Duty to Hand Over (Terhandstelling - Art. 6:233/234 BW): Were the general terms actually provided to you before or at the moment of signing? If they were only referenced (e.g., terms available on our website) but not physically/digitally handed over or attached to the contract, you may be able to annul the entire set of terms, including the arbitration clause.

3. Mediation vs. Arbitration

You asked about mediation. Mediation is voluntary in the Netherlands. You can certainly propose it as a faster, cheaper alternative to arbitration. However, unless the contract also has a mandatory mediation clause, you cannot legally force them to mediate if they prefer arbitration.

Summary of Options

1. Check the One Month Rule: If you are a consumer and the clause lacks the one-month court option, the clause is likely invalid.

2. Check the Handover: If the terms were never sent to you (only referenced), the clause may be voidable.

3. Propose Mediation: Frame it as a cost-saving measure for both parties, as arbitration fees in the Netherlands (e.g., NAI or disputes committees) can be high.

Next Step: I would be happy to take a quick look at the specific wording of the clause in your contract to see if it violates Article 6:236 BW. Would you like me to review the text of the clause for you?