In the first blog in this series, I explained what the Netherlands Commercial Court (NCC) is and why this court was established. This second blog focuses on practical aspects. When is it wise to litigate before the NCC? How do you actually use this court? And what points should entrepreneurs consider when making that decision?
How do you access the NCC?
Forum choice as a starting point
Access to the NCC depends on a clear choice of forum. Parties must explicitly agree that their disputes will be submitted to the Netherlands Commercial Court and, on appeal, to the Netherlands Commercial Court of Appeal (NCCA).
Een veelgebruikte formulering is bijvoorbeeld:
“All disputes arising out of or in connection with this agreement shall be submitted to the exclusive jurisdiction of the Netherlands Commercial Court in Amsterdam.”
Without such a choice of forum, the NCC is in principle not competent to hear the dispute. It is therefore important to consider this carefully when drafting the contract.
International character and professional parties
The NCC is intended for international trade disputes between professional parties. Purely national disputes or cases involving a consumer are outside its scope.
In international contracts, it is wise to clearly establish the cross-border nature of the legal relationship. This facilitates access to the NCC at a later stage and prevents disputes about jurisdiction.
The advantages of litigating at the NCC
Litigation in English
For many internationally operating companies, English is the everyday working language. Conducting proceedings in English prevents the need to translate contracts, correspondence and financial documents. This saves costs and reduces the risk of differences in interpretation. It is also beneficial for foreign directors and legal departments to be able to follow the proceedings without language barriers.
Specialised and experienced judges
The judges of the NCC have extensive experience in complex commercial disputes. They are familiar with international contract practices and economic contexts. This benefits the substantive handling and quality of the administration of justice.
Efficient litigation
Although Dutch procedural law applies, the NCC actively strives for the efficient settlement of cases. There is room for customisation, for example in the structure of the proceedings, the planning of the procedure and the number of procedural documents. This makes it possible to tailor the procedure to the nature and complexity of the dispute.
Points to consider when choosing the NCC
Weeg de kosten zorgvuldig af
An important point to consider is the higher court fees. For large commercial disputes, the advantages of the NCC often outweigh these additional costs. However, for smaller claims, regular civil proceedings may be more attractive. A prior cost-benefit analysis is therefore essential.
Consider an appeal
Those who opt for the NCC in the first instance will, in principle, also opt for the NCCA in the appeal proceedings. This means further proceedings in English and further higher court fees. This need not be an objection, but it is a factor that must be consciously taken into account in the strategic considerations.
Combine forum selection and choice of law
In practice, a forum selection clause for the NCC is often combined with a choice of law clause in favour of Dutch law. This is obvious, as the NCC judges are most familiar with Dutch law. Other choices of law are possible, but require extra attention in terms of litigation strategy and preparation.
Good preparation is crucial
Proceedings before the NCC are rigorous in terms of content. This requires a clear litigation strategy, well-structured procedural documents and a clear presentation of the facts. Entrepreneurs would be wise to seek legal advice at an early stage, especially when a dispute begins to emerge.
When is the NCC less suitable?
The NCC is not always the best choice. In very urgent cases, where financial interests are limited, or where the other party disputes the choice of forum, regular civil proceedings or arbitration may be more appropriate. The NCC is therefore not a standard option, but a strategic tool that must be assessed on a case-by-case basis.
Conclusion
The Netherlands Commercial Court offers entrepreneurs a powerful tool for resolving international commercial disputes. Those who consider their choice of forum, costs and litigation strategy in good time can benefit from English-language proceedings, specialised judges and a solid Dutch legal system. Using the NCC requires a conscious and well-prepared choice, but in the right cases it can provide a decisive advantage.
