Netherlands Commercial Court | Update
Mededinging & Regulering
20 maart 2017
The Netherlands is looking to boost its credentials as an international hub for complex litigation and dispute resolution. This year, the Dutch will establish the “Netherlands Commercial Court” in Amsterdam. It will focus on international commercial litigation. Parties will be able to litigate in English in first instance (NCC) and on appeal (NCCA). We wanted to provide an update for our international clients, as the new Court’s launch has been deferred to April 2017.
The legislative proposal to enable the establishment of the NCC and NCCA was published 16 December 2016. Although Dutch courts do not hesitate to conduct hearings in English and accept evidence in English, French and German, the current move goes beyond practicalities. It will be possibile to litigate 100% in English under Dutch law in cases that have an international component. Court fees will be higher than usual, but Dutch courts in general are considered very cost-effective as it stands.
The international component, which is required for the NCC and NCCA to accept a case, is to be interpreted broadly. Litigation is not restricted to cases with parties from various jurisdictions. It is also available to disputes featuring foreign law issues. Or disputes between Dutch parties on international projects.
The proposed procedures at the NCC are characterized by the following elements:
- English will in principle be the official language for proceedings (unless parties instead opt for Dutch).
- As an exception, if the case eventually moves to the Supreme Court, litigation before that venue must be in Dutch;
- Parties may only litigate before the NCC or NCCA if they explicitly choose to do so; the proposal provides for additional safeguards, which ensure that consumers and small business owners cannot be tied to such procedures against their will;
- Parties may only litigate to settle international disputes on matters that are at their discretion.
- Small claims cases are excluded. Parties cannot opt for NCC or NCCA litigation in respect of cases that must be brought before the sub-district court (‘kantonrechter’), because of limited financial stakes;
- International trade disputes can be more complex than average. This entails additional costs. These will not be funded by Dutch taxpayers. Parties must therefore pay a higher court fee than under the normal circumstances, in order to compensate. Court fees are estimated at EUR 15,000 for litigation before the NCC and EUR 20,000 before the NCCA. Proceeding for provisional arrangements will probably cost EUR 7,500 and EUR 10,000, respectively.
- There will be one clear Procedural Code for all proceedings. These are intended to supplement the regular procedural rules, available in the Dutch Civil Code for Procedures (‘Wetboek van Burgerlijke Rechtsvordering’).
The Dutch Council for the Judiciary expects the NCC in Amsterdam to kick off in April 2017. Read more about the background and advantages of the NCC in our previous blog.
Singapore International Commercial Court
With the establishment of the NCC, The Netherlands follows in the footsteps of Singapore, which has launched the Singapore International Commercial Court (SICC) in January 2015. The SICC is part of the Supreme Court of Singapore. Like the NCC it also specializes in hearing international commercial disputes, as well as disputes governed by foreign law. It has a diverse panel of local and international legal experts from both civil law and common law traditions. The SICC has a number of key features:
- Parties may in certain circumstances be represented by foreign counsel. These may address the SICC on matters of foreign law. Foreign counsel are subject to a Code of Ethics. They have to register with the SICC;
- The SICC takes a lenient approach in granting confidentiality in offshore cases;
- Parties are allowed to request the SICC to adopt rules of evidence which the parties are familiar with;
- Costs are at the discretion of the SICC. The general principle is that the unsuccessful party bears the reasonable costs of the proceedings;
- SICC judgments are enforceable in all states that have ratified the Hague Convention on Choice of Court Agreements (e.g. the Netherlands).