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Moving towards the Netherlands Commercial Court

Moving towards the Netherlands Commercial Court

A next important step towards creating the Netherlands Commercial Court has been taken: on 16 December 2016, the Netherlands Commercial Court legislative proposal (with accompanying explanatory memorandum) was published as a consultation document. The term to respond, 1 February 2017, has now expired. It looks like we are progressing towards a quick introduction of the act.

The proceedings before the Netherlands Commercial Court and the Netherlands Commercial Court of Appeal, hereafter jointly ‘NCC’ will be conducted in English. The judgement will also be in the English language (subject to a request to the contrary by the parties).

The NCC is placed with the District Court (first instance) and the Court of Appeal (appeal) in Amsterdam. In line with international examples – London, Singapore, Dubai, Dublin – it will provide for an international commercial court with specialised judges. There will be no cassation proceedings for the NCC.

The parties must expressly agree on the jurisdiction of the NCC. This can occur in advance in a commercial contract or later once the dispute has arisen.

A choice for the NCC that is solely based on a provision in the applicable general terms and conditions is, according to the exploratory memorandum, not sufficient. In addition, subdistrict court matters are not eligible for settlement by the NCC. These and similar choices may still be subject to some amendments. It will depend on the outcome of the consultation and subsequently on the parliamentary debate on the final legislative proposal whether any changes will be introduced.

What the NCC proceedings will look like exactly will only become clear once the NCC rules of procedure become available. This is currently not yet the case. It is possible that the NCC will have a wide directing role and that the parties will be able to choose their own rules relating to providing evidence, which would see a move towards international litigation practice.

The proposed court registry fees, which are intended to be cost-effective, are pretty high: EUR 15,000 for NCC proceedings in first instance and EUR 20,000 on appeal (and half of these amounts in cases ruled on by the court in preliminary relief proceedings in first instance or on appeal).

It was initially thought that the NCC would start on 1 January 2017 but this date was not achieved. The Council for the Judiciary anticipates to have completed the NCC organisation in April 2017. The parliamentary debate on the final legislative proposal will then, however, not be completed. The upcoming Lower House elections will also not contribute to the completion speed. The most realistic date of this coming into effect will be 1 January 2018. It is the intention of the minister that the new act will be immediately effective, which means that current proceedings can be continued before the NCC at the request of the parties.

The NCC has the potential to become a good alternative for the increasingly expensive international arbitration procedures and could also be important for the (competitive) position of the Netherlands as a country of establishment. In short, a good initiative; the NCC is very welcome!

More information on the NCC can be found on www.netherlands-commercial-court.com.

By Cindy Snelders-van de Kamp

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