On 7 November 2012 the claimants submitted their statement arguing that the language of the arbitration should be Dutch because:
- * the contract of affreightment under which the dispute had arisen contained a choice of Dutch law and Tamara arbitration in Rotterdam, the Netherlands;
- * the proceedings were under Tamara rules, which are of Dutch origin;
- * the lawyers acting for the parties were qualified under Dutch law;
- * the three arbitrators were Dutch;
- * the principle of equality of arms led to the application of Dutch law because the respondents' lawyer was bilingual (English and Dutch) whereas the claimants' lawyer was not. This gave the respondents an unfair advantage.
On 27 November 2012 the respondents argued that English law should apply because:
- * there was an implicit agreement between the parties regarding the choice of English law;
- * as the Tamara Rules contain no provisions regarding the language of the arbitration, international doctrine and other arbitration rules should be used as guidelines in order to establish the language of the arbitration. In that respect article 20 of the ICC rules is relevant. It provides: "In the absence of an agreement by the parties, the arbitral tribunal shall determine the language or languages of the arbitration, due regard being given to all relevant circumstances, including the language of the contract." The fact that the contract of affreightment was in English supported the argument that English should be the language of the arbitration;
- * the principle of equality of arms indicates that the language of the arbitration should be English because the respondents' principal expert only spoke English. If Dutch were to be the language of the arbitration, this would give the claimants an unfair advantage, especially during the hearing when relevant points could be lost in translation during the hearing;
- * English was the language in which the parties conducted their business and correspondence amongst themselves; * The seventeen claimants were domiciled outside the Netherlands as well as one of the two respondents. It was practically unheard of to conduct such an international arbitration in Dutch. Such international proceedings are invariably conducted in English. There was no valid reason to break with that custom;
- The seventeen claimants were domiciled outside the Netherlands as well as one of the two
respondents. It was practically unheard of to conduct such an international arbitration in
Dutch. Such international proceedings are invariably conducted in English. There was no
valid reason to break with that custom;
'''The procedural order'''
c) one of the two respondents was domiciled outside the Netherlands;
d) the contract of affreightment was between parties domiciled outside the Netherlands and related to the carriage of goods by sea between ports which were outside the Netherlands;
e) the most common language in the practice of the international carriage of goods by sea is English;
f) the TAMARA Arbitration Rules deliberately offer the flexibility to conduct the arbitration proceedings in any other language than Dutch;
g) all three arbitrators as well as the lawyers representing the parties were involved in the practice of international transport and shipping and were adequately experienced in using the English language.
The claimants' argument that the choice of Dutch law implied the use of the Dutch language did have some validity, in particular in respect to domestic disputes. However, the Tribunal was of the opinion that this argument was less valid when it related to a contract that had almost no real links with the use of the Dutch language.
