Following on from the commercial courts that already existed in some big cities (such as London, Dublin, Delaware, Dubai and Singapore), the government gave approval to open a court in the Netherlands specialized in international commercial disputes in 2015. Incentives were a yearning for an English-language jurisdiction and an improvement in the international trade position of the Netherlands.
When the Netherlands Commercial Court (NCC) was established, it was expected that in the long term it would handle around 125 cases per year. However, since the start of the NCC in January 2019, very few disputes seem to have been brought before the NCC. At the end of April 2023, the seventeenth decision of the NCC was published (including fourteen in the NCC District Court and three in the NCC Court of Appeal).
The NCC is characterized by the possibility of both English language proceedings and English language judgments, as well as a multi-judge panel. The aim is to make NCC proceedings fast and efficient. For example, all proceedings and communication between the parties take place through a digital platform called ‘eNCC’. This platform has had a short-lived existence: from 1 July 2023, the NCC will switch to another system. The NCC is open to host digital hearings. Another unique aspect is the application of Dutch procedural law, which is known for its pragmatism. Proceedings before the NCC are subject to an increased court fee.
The NCC considers on its own initiative whether it has jurisdiction over a dispute. This is the case as soon as parties explicitly agree that the NCC has jurisdiction over their international commercial dispute and that the proceedings will be conducted in English. Such a clause must also be clearly expressed, deliberately made and written (a choice for the NCC in the terms and conditions will not suffice). The requirement of internationality seems to be met quite easily: it is sufficient that the dispute has a cross-border connection.
In case parties make a choice for foreign law, the NCC should be perfectly capable to apply such foreign law. For example, English professor McKendrick (among others) writes about the NCC case of Subsea Survey Solutions LLC versus South Stream Transport B.V. that the NCC is able to correctly apply English law in efficient proceedings.
The above characteristics give rise to the expectation that success is guaranteed for the NCC. One explanation for the low number of disputes submitted to the NCC may be that for a long time contracts could not anticipate the choice of the NCC. After all, it was uncertain whether the NCC would actually be established. In addition, the NCC points out that, according to research, there is an average of 3,7 years between the announcement of a new court and the filing of the first case. Making a choice of forum for the NCC is also likely to depend on other factors, such as the quality of the judges’ English language, the flexibility, speed and expediency of the proceedings, the content of the NCC’s rules and the quality of the NCC’s judgments.
Brexit has slightly changed the playing field with regard to recognition and enforcement between the Netherlands and the United Kingdom. This could perhaps be an incentive for parties to agree on the choice for the NCC. Only time will tell how the NCC will develop and whether the number of cases will indeed increase as initially expected.
Our Dispute Resolution team is specialized in dealing with complex international commercial disputes.
