The Netherlands Commercial Court, a new forum of choice?
16 May 2018
The Netherlands Commercial Court (NCC) will soon be up and running in Amsterdam. Parties can already choose to bring disputes before this new and specialised chamber of the Court of Amsterdam by including a forum clause in their contracts today. The NCC will hear complex international civil or commercial disputes. The NCC aims to be an attractive alternative to international arbitration and commercial courts elsewhere.
Parties to international disputes litigate before the NCC in English unless all parties agree to continue in Dutch. A connection to the Netherlands is not required; the parties do not have to be Dutch, and the dispute does not need to be governed by Dutch law. Judges are selected from all courts in the Netherlands based on their outstanding knowledge of business law, experience in international dispute resolution and proficiency in English. NCC decisions can be appealed to the Netherlands Commercial Court of Appeal (NCCA), a special chamber of the Amsterdam Court of Appeal. Cases before the NCC and the NCCA are heard by a panel of three judges.
Cases can be litigated before the NCC if parties have explicitly agreed to this. Parties can choose to bring their dispute before the NCC, either before the dispute arises (by having a forum clause in their contract) or afterwards. Dutch procedural law applies as well as NCC regulations specifically designed for complex international cases. All communications with the court are digital, and ultra modern court technology is used to suit the needs of international parties.
The Netherlands is an attractive jurisdiction for litigation for a number of reasons. Judgments can be executed throughout the EU without the need for court intervention. The enforceability of Dutch judgments is further increased by the Netherlands being a party to the Hague Forum Convention. The cost of civil litigation is also relatively low compared to other countries. This is largely because expensive and time-consuming document discovery or disclosure processes, as are common in the US and English courts, do not exist in Dutch proceedings (unless parties agree otherwise). Dutch procedural law does, however, provide for the possibility of witness examination and disclosure of specific documents that are key evidence. Court fees are modest, and orders to pay costs to the successful party, when losing a case, are usually for relatively low and nominal amounts.
The draft bill on the NCC has been approved by the House of Representatives and is currently with the Dutch Senate. The NCC is expected to open its doors before the end of 2018. This means parties will soon have an interesting new option for international dispute resolution that is worth considering.
As a global law firm with a leading international litigation and arbitration practice in the Netherlands, Allen & Overy is exceptionally well positioned to help clients achieve successful outcomes in complex international disputes, including before the NCC.