New Dutch court for international commercial disputes to begin work in the New Year

The Netherlands Commercial Court (NCC), the new Dutch court slated to handle international commercial disputes in the English-language, is now set to start its activities and is expecting its first cases in early 2019.

Legislation passed by the Dutch Senate on 11 December 2018, including all the necessary amendments to the Dutch Code of Civil Procedure, was the last major procedural hurdle for the NCC to become a reality.

The NCC proposal passed the Senate easily in light of broad support for the new court in the government, judiciary and among Dutch legal practitioners. In debate, legislators had voiced concern over the cost-aspect of the NCC, which the government allayed with assurances that the NCC will remain cost-neutral and will in fact prove cost effective by taking complex international cases off the hands of the overworked Dutch judiciary.

That NCC court fees (EUR 15,000 for first instance, EUR 20,000 for appeal) are substantially higher than those of the regular Dutch courts, has raised questions of equal access to justice, particularly for smaller and medium-sized parties, and fears that higher court fees may become a precedent. The government responded that the NCC is a specialised service meant for sizeable and complex international disputes, which justifies the higher court fees.

The government also pointed out that the court fees are fixed and published, making NCC costs fully transparent for interested parties, which sets the NCC apart from other commercial courts and international arbitration, where litigation costs are often unpredictable and frequently exceed expectations.

Furthermore, conducting legal proceedings before the NCC will be voluntary for parties, who will need to explicitly agree upon litigating before the NCC.

With the NCC expected to start activities in January 2019, interested parties will soon be able to bring disputes before this new court, and can confer jurisdiction on it in contracts by using the following standard forum-selection clause provided in the NCC's rules and procedures:

"All disputes arising out of or in connection with this agreement will be resolved by the Amsterdam District Court following proceedings in English under that Court's Rules of Procedure of the Chamber for International Commercial Matters ("Netherlands Commercial Court" or "NCC"). Application for provisional measures, including protective measures, available under Dutch law may be made to the NCC's Preliminary Relief Judge in proceedings in English in accordance with the Rules of Procedure of the NCC."

If this clause is not included in a commercial contract, it is also possible to confer jurisdiction on the NCC after a dispute arises or if proceedings are pending before another Dutch court. In the latter situation, the case will be referred to the NCC.

CMS will closely monitor further development concerning this new addition to the Dutch judiciary. For more information on the NCC and how it could affect your business, feel free to contact one of our local CMS experts for advice.

See this Law-Now article on the first announcement of the NCC's establishment.