Arbitration Clauses in Leases

The 'Arbitragebeding': An Unfair Clause

Sometimes, a rental contract may contain an arbitragebeding, or an arbitration clause. This is a section that stipulates that any future disputes arising from the contract must be settled through arbitration rather than through the public court system or the Huurcommissie. Arbitration involves presenting the case to a private, third-party arbitrator or panel whose decision is legally binding. Landlords may favor these clauses under the assumption that they are faster or that an arbitrator may be more commercially minded than a judge.

However, in Dutch consumer and tenant law, such clauses are viewed with great suspicion. The law recognizes the inherent power imbalance between a landlord and a tenant. A tenant is considered the 'weaker party' in the transaction. Forcing a tenant to give up their right to access the state-sanctioned legal system (the courts) and specialized bodies (the Huurcommissie) is generally considered an 'unreasonably onerous' (onredelijk bezwarend) term. As such, an arbitration clause in a residential rental contract is often on the 'black list' (zwarte lijst) or 'grey list' (grijze lijst) of unfair contract terms, meaning it is presumed to be voidable or completely void.

A Tenant's Right to Choose

Even if a tenant signs a contract with an arbitration clause, it does not mean they are bound by it. The law gives the tenant the power to set aside the clause. If a landlord tries to initiate arbitration based on the clause, the tenant generally has a period of one month to declare in writing that they do not accept arbitration and wish to have the dispute heard by the competent court (bevoegde rechter). In essence, a tenant cannot be stripped of their right to go to the kantonrechter or, for relevant matters, the Huurcommissie. Any attempt by a landlord to enforce a mandatory arbitration clause against a tenant's will is almost certain to fail if challenged.