The Netherlands Commercial Court

Towards the end of the year there are always legislative proposals that still need to be debated in Parliament. A good example of this is the legislative proposal regarding the establishment of the Netherlands Commercial Court (the ”NCC”) and the Netherlands Commercial Court of Appeal (the “NCCA”) that was submitted to Parliament on 17 July 2017. The NCC is a specialized court (in the process of being formed) designed to meet the growing need for efficient dispute resolution of civil or commercial matters with an international component. The NCC will be part of the District Court of Amsterdam and the NCCA will be part of the Amsterdam Court of Appeal. 

Several countries already have a commercial court focusing on international trade disputes. By introducing the NCC, the Dutch legislator intends to prevent parties involved in a major international civil or commercial matter from electing (international) arbitration or a foreign jurisdiction.

Litigation at the NCC and the NCCA will in principle be in the English language. The court judgement will also be rendered in English. Dutch procedural law will be applicable to these proceedings. In case parties want to appeal the NCCA judgement, they need to do so before the Dutch Supreme Court based in the Hague. Proceedings before the Dutch Supreme Court are in the Dutch language. However, the Dutch Supreme Court may, in the event of an unanimous request from the parties, allow that parties file their defence or grounds for appeal in the English language.

Pursuant to the legislative proposal, parties will be able to litigate in front of the NCC/NCCA if the following conditions are met:

  • the District Court of Amsterdam/Court of Appeal of Amsterdam has jurisdiction over the dispute;
  • it concerns a civil or commercial matter within the autonomy of parties that is not subject to the jurisdiction of the Dutch subdistrict court or the exclusive jurisdiction of another chamber or court;
  • it concerns an international dispute;
  • parties have explicitly agreed to litigate in the English language at the NCC. A document containing such clause or a reference to general terms and conditions containing such clause is sufficient, provided that the specific clause has been explicitly accepted by or on behalf of the other party.

The NCC and NCCA court fees will be higher than the court fees for regular Dutch court cases. In principle the court fee at the NCC will amount to EUR 15,000 and the court fee at the NCCA will amount to EUR 20,000. Nevertheless, according to the explanatory memorandum the proceedings before the NCC and NCCA will provide an attractive alternative for (international) arbitration proceedings as the court fees will still be low in comparison with the average arbitration costs.

The legislative proposal is still under debate in the Lower House, which, according to the explanatory memorandum, already adopted a positive attitude towards the proposal to establish the NCC at the end of 2015.  Hopefully the legislative proposal will be adopted by the Lower House before the start of the Christmas recess. Subsequently, the legislative proposal needs to be submitted to the Upper House. If all goes according to plan, litigation at the NCC and the NCCA can actually be realized in the course of 2018.