Since 1 January 2019 the Netherlands Commercial Court (NCC), consisting of the NCC District Court and the NCC Court of Appeal) are officially in function. Litigation is never fun, but if one has to litigate, the NCC is an excellent forum to do so, for a variety of reasons.
Dutch Court System
The Dutch judiciary ranks among the most efficient, reliable and transparent globally. It is considered to be expeditious (with an average of 130 days from service of a notice to appear to a final judgment) and easy accessible, and court fees are relatively low. Although the official court language generally is Dutch, unless the Court in a pending case so desires, if exhibits are in English, German or French, they may be filed in their original language without translation being required. Judgments rendered by Dutch Courts are automatically enforceable throughout the EU.
Features of the NCC
litigation in English - the NCC adds an extra flexibility feature to the system: here the proceedings are in English, as are the judgments. It is staffed by judges and clerks having specific experience and an excellent command of the English language.
Case handling – cases are heard by a three-judge panel. The parties are consulted about the actual case management, typically at a special hearing where for instance motions, fact-finding and a time-table are discussed, thus providing for extra flexibility. In exceptionally urgent cases the Court is even able to hear and decide matters anytime (24/7) and anywhere.
Costs – the court fees are a bit higher than for other cases before the ordinary Dutch Courts, but only slightly so, and therefore still very competitive. At the NCC District Court level each party has to pay a flat fee of EUR 15,000; at the Court of Appeal level, the court fee is EUR 20,000. Besides, it is noteworthy that the party who lost is not ordered to reimburse the winning party's full legal costs, but only a (small) portion of them as established by the Court in accordance with the generally applicable cost awarding guidelines.
Involvement of foreign lawyers
Acts of process, such as the submission of a claim or defence, must be carried out by a member of the Dutch Bar. Foreign lawyers, however, can of course give substantive input. Besides, members of the bars in Member States of the European Union, the European Economic Area or Switzerland may represent a party in Court, for instance at hearings. Other visiting lawyers may not act for a party, but the Court may allow them to speak at any hearing.
When to opt for the NCC?
The NCC is suited for handling litigation on any civil or commercial matter within the parties’ autonomy, especially larger and more complex ones, with an international angle to it, for instance where one or more of the parties are domiciled in a foreign jurisdiction, but also where there is another relevant cross-border interest involved, such as shareholders, employees or revenue located in or linked to a foreign jurisdiction. The only other requirements are that the Amsterdam District Court or Court of Appeal has jurisdiction and that the parties have expressly agreed in writing, either before or after the dispute arises, that proceedings will be in English before the NCC.
Specific types of cases that might be brought before the NCC are a claim in a collective action, and an application seeking a declaration that a collective settlement is universally binding (including third parties), provided, in either case, the Court of Amsterdam has jurisdiction based on criteria such as the domicile of one of the parties or the place where the harmful event occurred, or the settlement agreement being connected to the Netherlands.
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