20 december 2018
From 1 January 2019, it will be possible to litigate in English before the Netherlands Commercial Court (NCC District Court and NCC Court of Appeal) according to the official announcement today. The proposal to establish the NCC was already approved by the House of Representatives on 8 March 2018, but it took the Senate longer than expected to vote in favour of the proposal. It finally did so on 11 December 2018.
The NCC will be based in Amsterdam at the Palace of Justice, only 20 minutes from Schiphol Airport. It will hear all types of international business disputes, such as contractual disputes, tort disputes, property law disputes and corporate law issues. The parties to the dispute will not have to be Dutch, nor will the dispute have to be governed by Dutch law. The NCC can also be considered as an option when enforcing an arbitral award if the debtor is domiciled in Amsterdam or has assets there. It is also possible to apply to set aside an arbitral award at the NCC Court of Appeal if Amsterdam is the arbitration seat. Mass claims can be submitted to the NCC in collective proceedings as well. As a last example, the parties to a settlement agreement under the Dutch Act on Collective Settlement of Mass Claims (WCAM) can choose the NCC Court of Appeal to declare the agreement binding on the settlement class.
Litigation before the NCC will only take place on a voluntary basis, meaning that a written agreement will be needed to settle a dispute through the NCC. Since the NCC District Court and the NCC Court of Appeal will be chambers in the Amsterdam District Court and the Amsterdam Court of Appeal respectively, it will be necessary for the Amsterdam District Court or the Amsterdam Court of Appeal to have jurisdiction, e.g. through a choice-of-forum clause for these courts. It will be possible to appeal decisions of the NCC Court of Appeal to the Dutch Supreme Court, but these proceedings will in principle be conducted in Dutch.
The proceedings before the NCC will be subject to Dutch procedural law. Dutch proceedings are considered efficient and less extensive, and therefore shorter and less expensive than proceedings in English-speaking countries. In the WJP Rule of Law Index 2017-2018 the civil justice system in the Netherlands was ranked first. Furthermore, the NCC’s judgments will be automatically enforceable throughout the EU Member States. This is why the NCC might be of interest to parties that would otherwise have chosen a non-Dutch court or arbitration procedure.
All cases before the NCC will be heard and decided by a three-judge division. Only preliminary relief proceedings will be heard before a single-judge court. Wherever possible, digital means will be used in the proceedings, such as electronic communication, recordings or video conferences.
Both parties will have to pay court fees when commencing proceedings. The fees for the NCC District Court will be €15,000 for proceedings on the merits and €7,500 for preliminary relief proceedings. The fees for the NCC Court of Appeal will be €20,000 for proceedings on the merits and €10,000 for preliminary relief proceedings. The parties can make agreements on the costs of the proceedings. Where no agreement is made, the court will apply Dutch law in respect of costs in civil and commercial matters. This usually means that the losing party will have to pay a small part of the legal costs incurred by the winning party.
More information can be found on the NCC website.