Netherlands Commercial Court ("NCC"): English-language dispute resolution in the Amsterdam courts

By Marielle Broekman

01-2019

The Netherlands Commercial Court ("NCC") is now open for business (as of 1 January 2019). The NCC hears cases in the English language, both in first instance (NCC District Court) and in appeal (NCC Court of Appeal). All procedural documents, hearings and judgments are in English.

The NCC procedures are tailored to handle complex cases as efficiently as possible. The NCC offers an expert forum that can resolve international business disputes within a reasonable period and at reasonable costs.

The NCC is built on a solid foundation: the Dutch judiciary is deemed one of the most efficient, reliable and transparent worldwide. This reputation has been confirmed by the Netherlands' ranking as number 1 worldwide for civil justice in the World Justice Project's Rule of Law Index 2017–2018: https://worldjusticeproject.org/sites/default/files/documents/WJP-ROLI-2018-June-Online-Edition_0.pdf (see p. 42). This index measures whether civil justice systems are accessible, affordable and free of discrimination, corruption and improper influence by public officials. It examines whether court proceedings are conducted without unreasonable delays and whether decisions are enforced effectively. It also measures the accessibility, impartiality and effectiveness of alternative dispute resolution mechanisms.

In international business disputes, the Dutch courts were already often chosen over the courts in other countries because of their reliability, practical approach and efficient and transparent way of operating. By pioneering English-language dispute resolution in a civil law jurisdiction, the NCC now meets the growing need among Dutch and foreign internationally active companies to be able to litigate in English before a Dutch court. For these companies, the NCC has considerable added value: they are more often faced with international business disputes between parties from different countries where communication is conducted in English and contracts are often drafted in English. The possibility of litigating before the NCC in English means that it is no longer necessary to make translations. In addition to the cost advantage, it is also expected that this leads to more efficiency, clarity and transparency.

A matter may be submitted to the NCC if the following requirements are met: 

a. the Amsterdam District Court or Amsterdam Court of Appeal has jurisdiction (based on a choice-of-court clause or other rules, e.g. because of the defendant's domicile);

b. the parties have expressly agreed in writing that proceedings will be in English before the NCC;

c. the action is a civil or commercial matter within the parties' autonomy (such as contractual disputes, claims in tort, property disputes or intellectual property, technology, construction or corporate matters); and

d. the matter concerns an international dispute (including matters where one or more of the parties have their domicile in a foreign jurisdiction, but also where the dispute otherwise involves a relevant cross-border interest, such as shareholders, employees or revenue located in or linked to a foreign jurisdiction).

To agree to submit the matter to the NCC and to choose English as the language of the proceedings, the NCC recommends using the following clause:

"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."

If the parties have not already agreed on this approach in advance, they can still make the appropriate arrangements after the dispute has arisen. It is even possible for the parties in ongoing proceedings to request the court to refer their case to the NCC District Court or the NCC Court of Appeal. Naturally, the case must then meet the NCC requirements.

The NCC is a special chamber of the Amsterdam District Court and of the Amsterdam Court of Appeal and resides in the Palace of Justice in Amsterdam. The NCC employs judges and legal staff from various Dutch courts who have specific expertise and experience in the field of international business disputes and are also well-versed in English.

The NCC applies the rules of Dutch civil procedural law (the Dutch Code of Civil Procedure) and the NCC Rules, in which the rules of Dutch procedural law are partially set out and which furthermore are based on worldwide best practices (such as the IBA Rules of the International Bar Association and other national systems of civil procedural law). Among other things, the NCC offers the possibility of a more active case management: at the request of the parties, a conference can be held to discuss various procedural matters such as a timetable for submitting motions and conducting fact-finding activities. The applicable substantive law is determined on the basis of Dutch international private law and can therefore also be foreign law.

Submitting a case to the NCC means:

a. speedy proceedings: the Dutch courts are the 5th fastest in the European Union with an average of 130 days from a notice to appear to a final judgment;

b. the language of the entire proceedings is English (including judgment);

c. NCC judges are impartial, independent and experienced in complex international business matters;

d. cases are heard and ruled by a three-judge panel;

e. active case management in consultation with the parties: typically a conference will be scheduled to discuss issues, motions, fact-finding and a timetable;

f. clear rules of procedure: the NCC Rules provide parties with reliable, transparent guidance on procedural matters;

g. focus on global best practices: the NCC Rules provide flexibility;

h. 24/7 availability: in exceptionally urgent cases, the court is authorised to hear and decide cases anytime, anywhere; and

i. low costs: a flat court fee of EUR 15,000 for the NCC District Court (EUR 7.500 in Summary Proceedings) or EUR 20,000 for the NCC Court of Appeal (EUR 10.000 in Summary Proceedings).

More information about the NCC can be found on the (English) website www.ncc.gov.nl