Amsterdam will soon be joining the likes of London, Dubai and Singapore when the new Netherlands Commercial Court opens its doors. This court shall be specialised in hearing complex (international) commercial cases. The Netherlands Commercial Court will offer parties to business and trade disputes a forum where they can litigate in English before neutral, specialist commercial judges, right in the heart of Europe.
English is indisputably the language of global business. Commercial contracts are frequently drafted in English, parties from countries with different languages communicate with each other in English. But when it comes to litigation, parties to cross-border disputes can be forced to conduct court proceedings in a language which they do not understand. The Dutch judiciary has decided to embrace English as the leading commercial language, establishing an English speaking court, the Netherlands Commercial Court here in Amsterdam.
The court will provide an alternative to parties who want to litigate in English, but wish to avoid expensive forums such as London or the United States.
The Netherlands Commercial Court is also an alternative for those parties who do not want to submit to arbitration, where proceedings are costly and outcomes may not be as predictable as before national courts.
Dutch procedural law is recognised for being efficient, pragmatic and cost-effective. An example of the advantages of litigating in The Netherlands is the conservatory arrest (Dutch freezing/Mareva injunctions). These orders can be attained with relative ease to prevent assets located in the Netherlands from being removed from the jurisdiction or otherwise disposed of pending the completion of proceedings.
While such injunctions can be quite difficult to secure in English speaking common law jurisdictions, the Dutch courts award these arrest orders quite readily, giving plaintiffs in Dutch proceedings a high degree of security and certainty regarding their ability to execute a judgment if it is handed down in their favour.
This makes The Netherlands a particularly attractive forum for claimants with a cause of action against a Dutch defendant. The Netherlands are also an ideal forum for litigation in which the defendant or its assets are not located in the Netherlands. It is little known that Dutch court judgments are amongst the most widely enforceable judgments worldwide.
Thanks to instruments such as the Brussels Regulation, the Lugano Convention and the Hague Convention on the recognition and enforcement of foreign judgments in civil and commercial matters, Dutch court judgments are easily enforceable in over 30 other jurisdictions, including 5 outside the European Union. In addition to this, Dutch decisions are generally also enforceable in the United States (most states), Canada, Singapore, Hong Kong, Australia and New Zealand. This makes a Dutch judgment enforceable and valuable well beyond the borders of The Netherlands.
Arbitration has become an extremely popular method of dispute resolution in international commercial matters for a number of reasons: it offers parties the opportunity to conduct proceedings in a language of their choice, to select a neutral venue and to have their matter heard by arbitrators with commercial experience. The Netherlands Commercial Court will offer parties the ability to litigate in English before experienced judges with technical and commercial expertise and experience and to have their matter heard by the courts of a legal system which is unrivalled in terms of independence, efficiency and impartiality. Parties do not have to have any links to the Netherlands in order to submit a matter to the NCC, making the NCC an ideal venue for parties from two different states looking for a “neutral” third state to act as a venue for their litigation.
The civil legal system of the Netherlands was ranked highest of all civil justice systems in the world in the World Justice Project (WJP) 2015 Rule of Law Index ®, based on criteria such as cost-effectiveness, efficiency, impartiality and independence.
Dutch court judgments are easily enforceable in over 30 other jurisdictions, including the entire European Union and 5 other States on the basis of EU regulations, or bilateral or multilateral treaties. In addition to this, decisions of the NCC will, as a rule, be enforceable in (most states of) the United States, Canada, Singapore, Hong Kong, Australia and New Zealand.
The Netherlands Commercial Court Act (Wet Netherlands Commercial Court) is slated to come into force on 1 January 2018.
The Netherlands Commercial Court has come one step closer to fruition in July, 2017, with the tabling of the implementing legislative bill before the Dutch Parliament on 18 July 2017. The Netherlands Commercial Court Bill contains amendments to the Dutch Code of Civil Procedure to provide for the use of English as the language of proceedings and to allow the “international commercial chamber” of the Amsterdam District Court and Court of Appeal (as the Netherlands Commercial Court and Netherlands Commercial Court of Appeal are referred to in the Bill) to hand down judgments in the English language.
In addition to this, the bill also provides for certain amendments to the Dutch Civil Proceedings (Court Fees) Act to provide for the special filing fees that litigants before the Netherlands Commercial Court will have to pay. After missing the original proposed starting date of 1 January 2017, with this step the Netherlands Commercial Court looks to be on track to open its doors on the revised starting date of 1 January 2018.
Notwithstanding the delays in the launch of the NCC, support for the first fully English language commercial court in the Netherlands remains strong. The strong political support for the initiative is apparent from the discussions of the Standing Committee, with Christian Democrat Madeleine van Toorenburg MP underlining the importance of the NCC, in particular with the Brexit on its way. This was echoed by Mr Van Oosten, who cited the value of the NCC as a vehicle to promote the exemplary Dutch legal system and to attract litigation from other jurisdictions to the Netherlands. According to Mr Van Oosten, this is in keeping with the Netherlands’ history as a country with a tradition of international trade and an international legal profession.
