Dutch litigation in English, the Netherlands Commercial Court (NCC)
On January 1st 2019 the Amsterdam state court will inaugurate a chamber specialized in international commercial litigation conducted entirely in the English language called the Netherlands Commercial Court (NCC). With this, the Netherlands is a frontrunner in a European trend including France, Germany and Belgium, akin to already operative similar courts in Singapore and London.
The main characteristics of the NCC are, summarized: only commercial disputes are eligible and must to some degree contain a cross-border element, the parties can have every nationality even Dutch on both sides, a jurisdiction clause choosing the NCC must either form part of their contract or be agreed upon after the dispute has arisen, the judges are all professional judges and proven skilled in international legal matters and recruited from all Dutch courts, Amsterdam will be the venue for all cases in first instance and in appeal (the NCCA), the communication and filings are processed completely digitally (in English), EU attorneys are admitted to plead before the NCC provided they register through a Dutch attorney and are in command of English, the court dues are fixed at a level of € 15,000 in first instance, € 7,500 for injunctions and € 20,000 in appeal, the attorneys legal cost awards are categorized, the Dutch Code of Civil Procedural law applies save jointly adopted other rules such as the International Bar Association’s rules of Evidence and the court applies every governing law that either the parties have jointly chosen or follows from Dutch private international law.
The target workload of 50 to 100 cases per annum within 3 years seems ambitious but viable if the NCC succeeds in convincing the legal industry, attorneys and in-house counsels to systematically adopt NCC forum clauses when drafting international contracts. The advantage NCC has over international arbitration is that it is bound to be more time/cost efficient and its court awards are easily enforceable throughout the EU under the 2012 Recast Brussels Regulation and further world-wide under the 1971 Hague Convention on Enforcement of foreign civil and commercial judgments, once recast. The NCC caters for not only the multinational corporates and international operating banks but also for smaller cross-border trading companies, investors and non-profit organizations. After all, the Dutch economy has a predominant international focus where English is the common language.
Wintertaling is actively monitoring the evolution of the NCC in order to facilitate clients to use this brand new option for dispute resolution.
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