18 January 2018

New option for complex international litigation: the Netherlands Commercial Court

Parties to an international dispute will soon have another forum available to resolve their conflicts. The Netherlands Commercial Court (NCC) is expected to be established in mid-2018. The NCC aims to become an attractive option for parties to complex international civil or commercial disputes, both Dutch and non-Dutch alike.

This article is part of our Crystal Ball Gazing series, in which we look ahead at possible developments in 2018.

In July 2017, the Dutch legislature presented a proposal to introduce the NCC to parliament. The proposal received a warm welcome, and will be discussed by parliament in mid-February. Preparations are ongoing to ensure the smooth launch of the NCC.

The establishment of the NCC will add a specialised chamber to the Amsterdam District Court. For appeals of NCC decisions, a dedicated chamber will be formed in the Amsterdam Court of Appeal: the Netherlands Commercial Court of Appeal.

Parties to the dispute do not have to be Dutch, nor does the conflict have to be governed by Dutch law. The competency of the NCC will typically be based on a choice of forum; parties can decide on the NCC as the designated forum either before or after a dispute arises. Although the Dutch Code of Civil Procedure applies, additional procedural court regulations have been drafted to suit the needs of the complex litigation the NCC will handle. The NCC is also expected to benefit from the ongoing transition of the Dutch judiciary to fully digital proceedings and its shift to active case management. In addition, the NCC will make use of state-of-the-art techniques to facilitate international parties. Proceedings can be conducted in English, resulting in a decision drafted in English. Judges for the court will be selected based on their English proficiency, their international dispute resolution experience, and their exceptional knowledge of company law. Compared to other jurisdictions, litigation in the Netherlands is relatively cheap, for several reasons: Dutch court fees are relatively low, there is no typical award for actual costs against the losing party, and Dutch procedural law does not have an onerous discovery or disclosure phase, which may be a benefit to litigating before the NCC. Finally, as the NCC will form part of the existing Dutch courts, its decisions can be executed throughout the EU without the need for court intervention.

All things considered, from mid-2018 the NCC will be an interesting alternative to cross-border arbitration or litigation before other national or international courts.