Netherlands Commercial Court: new export product!

The recently created Netherlands Commercial Court has been created to decide in international civil commercial matters. The jurisdiction of the Amsterdam district court or the Amsterdam court of appeal may be based on a choice-of-court clause or likewise other rules such as the defendant’s domicile. Parties need to agree to take the case to the Netherlands Commercial Court and to choose English to be the language of the proceedings. This is the “NCC agreement”. The NCC agreement may be laid down according to the following model clause.

Dutch justice

The Dutch courts are ranked among the most efficient, reliable and transparent worldwide, international rankings confirm. In general Dutch courts have speedy proceedings: on average 130 days from a notice to appear to a final judgement. The judges are impartial, independent and experienced in complex international business matters. Since international trade has been one of the main branches of business in the Netherlands since at least 1602 when the V.O.C. (the United East India Company) was founded it is indeed a good idea to open this extra possibility to solve international commercial disputes. Since a court of this nature is likely to find plaintiffs and defendants who would like to have their dispute settled also France, Germany and Belgium are aiming to set up a court like this.

Characteristics

Cases are heard and disposed of by three judges. Active case management is inherent: typically a conference will be scheduled to discuss issues, motions, factfinding and a timetable. Court fees in first instance are € 15.000,00 and for the appeal proceedings € 20.000,00. This is relatively cheap as opposed to international arbitration procedures. Hearings are in public like (nearly) all other hearings in the Netherlands.

First case: first hearing has taken place

The NCC Court has had its maiden hearing on February 18, 2019 in a dispute between Elavon Financial Services and IPS Holding. And already the second hearing in this matter (summary proceedings) has been held on February 26 last. According to all concerned “everything went as usual in the courtroom”. It looks indeed as if this court will decide frequently in international commercial disputes.

For all international commercial disputes the Netherlands Commercial Court may be an attractive alternative to the more expensive NAI, the Dutch Arbitration Institute. Important is that this court cannot be made competent through a reference to general terms and conditions. An explicit choice of law is necessary.

Interesting is the possibility to agree on special arrangements to customise the NCC clause such as an agreement on evidence that departs from the general rules and the submission of a written witness statement prior to the witness examination. Such tailor made clauses may lead to an effective dispute resolution. The long time disputes can be pending in some countries illustrates that an adequate dispute resolution is almost a new Dutch export product in the present age!