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Opening of the Netherlands Commercial Court

Introduction

A new commercial court, The Netherlands Commercial Court (‘NCC’), will be established in the Netherlands, set up to settle international trade disputes. As the name suggests, this court will be dedicated to commercial and, more importantly, international disputes.

This is in line with the practice in other countries, where commercial law disputes can be decided by specialized courts, such as the Commercial Court in England, the Tribunaux de commerce in France and the Handelsgerichte in some German-speaking countries. Singapore and India also make use of a similar kind of court.

The Netherlands Commercial Court will focus on international trade disputes in a broad sense. Trade has always been international and even more so during the last decades. Not only has English become the first language for cross-border transactions, it has also conquered the domestic domain. Many companies in the Netherlands are either part of an international concern or do business with foreign companies. Because of this, parties involved in cross-border disputes can be forced to conduct court proceedings in a foreign language, making the proceedings more difficult and costly. The Dutch judiciary decided there is need for a more efficient way of litigation and established an English-speaking commercial court.

A short overview of the characteristics of NCC

court in Amsterdam
The NCC will be set up at the courts of Amsterdam, both at the District Court as well as at the Appeal Court level

specialised chambers
All disputes will be resolved by three (Dutch) judges in both first instance and appeal, in contrast to other commercial courts where there is only one judge. The judges of the Netherlands Commercial Court are specialised in international trade law, and are experts in handling commercial disputes

in English
The NCC will enable parties to conduct their Dutch legal proceedings in the English language, except when the Dutch language is selected by all the parties. However, when it comes to cassation at the Supreme Court, this proceeding will still be in Dutch

International conflicts only
Contrary to the initial proposal, the court will be competent in international conflicts only, meaning that there must be either a conflict including at least one foreign party or foreign law being applicable on the matter. Purely national conflicts will not be heard or decided upon

Dutch civil procedural law
The NCC will apply Dutch civil procedural law

costs
Court fees for cases brought before the Netherlands Commercial Court (NCC) and the Netherlands Commercial Court of Appeal (NCCA) are proposed to be € 15,000 and € 20,000 respectively. Although higher than ordinary Dutch legal proceedings, this is a cost-effective alternative in comparison to having cases heard by international commercial courts in other countries where fees may be much higher. Furthermore, there are plans to allow the NCC, in certain cases, to mitigate costs for those parties that demonstrably cannot carry them

voluntary
Litigation before the NCC can only take place on a voluntary basis, so an written agreement is needed to settle a dispute through the NCC. Parties can choose to bring their dispute before the NCC at any moment

no minimum interest criterion
Claims of an undetermined value and disputes between small businesses can also be judged by the Netherlands Commercial Court. However, there are a few limitations; cases that belong at the sub-district court (i.e. ‘’cantonal court cases’’, such as employment law cases, rental disputes,  claims below  € 25,000, etc.) are excluded from the NCC.

Who can go to the NCC

All parties, non-natural persons (such as companies) and natural persons, can submit a matter to the Netherlands Commercial Court. Parties do not have to have any link with the Netherlands, making it an ideal venue for parties from two different states looking for a “neutral” third state.

Launch of the NCC

The NCC was originally proposed to start on the 1st of January 2017, however this date has now become the 1st of January 2018. On the 18th of July 2017 the amendment of the law to provide for the use of English as the language of proceedings and judgements was tabled before the Dutch Parliament. When this legislation has come into force the NCC can open its doors.

Advantages

We believe proceeding before the Netherlands Commercial Court is advantageous for the following reasons:

  • the court shall apply Dutch civil procedural law, which is pragmatic, efficient and cost-effective;
  • the language of the Netherlands Commercial Court proceedings shall be in English, unless Dutch is chosen, allowing foreign, English-speaking lawyers to be actively involved in these proceedings, decreasing the cost of translation of documents;
  • there will be specialized Dutch judges with technical and commercial expertise and experience;
  • effective and shorter proceedings;
  • ability to split proceedings into a merits and quantification of damages phase;
  • evidence may be offered in French, German, English or Dutch, saving time and translation costs;
  • paperless litigation;
  • recovery options (prejudgment seizure). In the Netherlands, even if a creditor has no title to enforcement yet, he may attach any assets of his debtor under a so-called prejudgment seizure. The attached assets act as security for the creditor’s claim.

Conclusion

The NCC has the potential to become a good alternative for the increasingly expensive international arbitration procedures and a good option for international trade proceedings.

Fort Advocaten is a midsized law firm based in Amsterdam. 30 business lawyers work in specialized teams for both national and international clients. With over 20 years of experience, our legal services focus on real estate law and corporate law, such as corporate litigation. Our teams are well recognized for their experience working in different industries. We guarantee a high level of quality and service due to thorough knowledge of both law and jurisprudence, size and efficiency.

If you have any questions regarding this article or are in need of any advice, please feel free to contact us at any time.

Written by Annemiek Nass and Lynn Rook

 

Annemiek Nass

Annemiek Nass is advocaat ondernemingsrecht en is gespecialiseerd in corporate litigation, arbitrage en collectieve acties. Neem voor vragen contact op via 020 664 51 11.

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