Recent years has seen a downward trend in international trade and commercial cases brought before Dutch courts. But with the Dutch parliament scheduled to debate a bill for the establishment of the Netherlands Commercial Court (NCC), international commercial disputes may soon be decided in Amsterdam.
The decision to establish the NCC is a response to a long-running trend in global business to take disputes to international arbitration or commercial courts, such as the Commercial Court of England and Wales, and newly established commercial courts in Dubai and Singapore.
The Dutch Judiciary published a plan to create the Amsterdam-based NCC in 2015, and if the resulting bill is debated, amended, and passed in February, the NCC may be up and running as early as the second half of 2018.
The new court's main aim is to compete for civil cases that are large, complex and international in nature. The NCC will have an appeals chamber (the Netherlands Commercial Court of Appeal or NCCA) with the possibility to appeal in cassation at – or ask preliminary questions of – the Dutch Supreme Court.
All chambers of the NCC will be presided over by Dutch judges, chosen for their proficiency in English, and their specialized knowledge of and experience with international commercial cases.
An effective and modern court, the NCC will hear cases in English, use digital recordkeeping, and follow Dutch procedural law, which is highly respected worldwide for its efficiency, practicality, and cost-effectiveness. Court fees have not been set, but the NCC is expected to be competitive with other commercial courts and international arbitration bodies.
Parties will have to choose explicitly to bring litigation to the NCC, either through a specific forum-selection clause in a contract, or by jointly applying for the court to hear their dispute. Parties will have the freedom to make agreements among themselves about the division of costs, and may also agree to waive the possibility of appeal. NCC judgments will qualify as Dutch court judgments, which rank high in enforceability. Enforcing Dutch judgments is considered particularly straight forward, especially in the EU.
Whether the NCC can successfully compete with other commercial courts and international arbitration bodies remains to be seen, and will depend greatly on the interest and participation of Dutch business. But given the NCC’s trustworthiness and judicial experience, its cost advantages, and its effectiveness, we can well imagine that Dutch companies will choose this chamber as their go-to court in international business, and will begin drafting contracts with a forum-selection clause for the NCC. The court's decision to hear cases in English, digitalise recordkeeping and communication, and use clear, well-tested Dutch procedural law should give the NCC a competitive advantage.
If the NCC is successful, Europe will gain another important hub for international commercial dispute resolution. As a global law firm with a long-established litigation and arbitration practice in the Netherlands, CMS is expertly suited to advise and represent clients in litigation before the NCC. Its familiarity with Dutch procedural law, its knowledge of commercial litigation, and its understanding of international commercial practice makes CMS an essential resource in any dispute.
