The Netherlands Is Open for Business

Paul Hendriks

p.hendriks@vestius.com

Vestius Attorneys at Law

www.vestius.com

Enrique Brat

h.brat@vestius.com

Vestius Attorneys at Law

www.vestius.com

The Netherlands Commercial Court in Amsterdam

Inspired by cities like London, Singapore, Delaware, Dubai and Dublin, the Dutch courts have created the Netherlands Commercial Court, an international commercial court situated in Amsterdam, the Netherlands. As of 01 January 2019, the Netherlands Commercial Court (NCC) and the Netherlands Commercial Court of Appeal (NCCA) have opened their doors for business.

 

The NCC

The NCC focuses on complex international civil or commercial disputes and aims to be an attractive alternative to other international commercial courts. Parties do not need a connection with the Netherlands. Also, non-Dutch parties can litigate before the NCC and the dispute submitted to the NCC does not have to be governed by Dutch law.

 

International civil or commercial disputes

Parties may initiate an action before the NCC if:

  1. The parties have expressly agreed in writing to litigate before the NCC in English;
  2. The matter concerns an international dispute;
  3. The parties have designated the Amsterdam District Court as the forum to hear their case or the Amsterdam District Court has jurisdiction (based on a choice-of-court clause or other rules); and
  4. The action is a civil or commercial matter within the parties’ autonomy and is not subject to the jurisdiction of any other chamber or court.

The “international dispute” test is broad in scope. If one or more of the parties have their domicile in a non-Dutch jurisdiction or the dispute involves a relevant cross-border interest, such as shareholders, employees or revenue located in or linked to a non-Dutch jurisdiction, the matter concerns an international dispute.

Also, the term “civil or commercial matter” is relatively broad; it includes contractual disputes, claims in tort, property-law disputes, corporate-law matters, insurance, finance, intellectual property, competition, transportation and government liability.

 

Why NCC?

Why you would bring a case before the NCC:

  1. English language: the language of the entire proceedings (including the judgement) is in English, which also saves costs for translation.
  2. Speedy proceedings: Dutch courts are the fifth fastest in the EU with an average of 130 days from a notice to appear to a final judgement.
  3. Efficient, reliable and transparent: the NCC is situated in the Dutch courts, which are ranked among the most efficient, reliable and transparent worldwide. According to the World Justice Project (WJP), an independent, multidisciplinary organisation working to advance the rule of law worldwide, Dutch courts are among the most reputable in the world.
  4. Clear rules of procedure: Dutch procedural law applies as well as the NCC Rules specifically designed for the NCC. These NCC Rules provide parties with reliable, transparent guidance on procedural matters.
  5. Electronic communications: all documents are submitted electronically in eNCC, which is the NCC portal with secure access through the NCC website (ncc.gov.nl).
  6. 24/7 availability: in exceptionally urgent cases, the NCC is authorised to hear and decide cases anytime, anywhere.
  7. Three-judge panel: cases are heard and disposed of by a three-judge panel, consisting of judges with broad international experience. Preliminary relief proceedings will be heard before a single-judge court.

 

Costs

The fees for the NCC are relatively low compared to other countries and amount to EUR 15,000 for proceedings on the merits and EUR 7,500 for preliminary relief proceedings. The fees for the NCCA will be EUR 20,000 for proceedings on the merits and EUR 10,000 for preliminary relief proceedings. The parties can make agreements they consider appropriate in respect of the costs of the proceedings, including the court fee and the costs for lawyers. In the absence of an agreement, the NCC will apply Dutch law in respect of costs of proceedings in civil and commercial matters. This usually means that the unsuccessful party will bear the costs of the proceedings.

 

Enforcement of NCC judgments

NCC judgements are issued by a Dutch court and are therefore recognised and enforceable in the EU. These judgements are immediately enforceable by the competent enforcement authority. The enforcement of NCC judgements outside the EU is governed by international conventions to which the Netherlands is a party and by general private international law in the jurisdiction where enforcement is sought. Depending on the jurisdiction, this might lead to the conclusion that the NCC is not the right competent court, but arbitration according to the New York Convention might be a good alternative.

 

NCC Clause

For the NCC to hear a case, parties must agree a clause that takes the case to the NCC and makes English the language of proceedings. The NCC recommends using the following language in the agreement:

All disputes arising out of or in connection with this agreement will be resolved by the Amsterdam District Court following proceedings in English before the Chamber for International Commercial Matters (Netherlands Commercial Court or NCC). An action for interim measures, including protective measures, available under Dutch law may be brought in the NCC’s Court in Summary Proceedings (CSP) in proceedings in English.

 

Conclusion

We believe that the NCC provides a good alternative to other international commercial courts and we strongly advise parties to initiate proceedings before the NCC in Amsterdam, the Netherlands.

 

XLNC MAGAZINE | No. 03 | May  2019

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