It may not be long before the first cases can be brought before Netherlands Commercial Court (“NCC”). On 18 July last, a legislative proposal was sent to the House of Representatives to amend the relevant legislation, in particular to allow for legal proceedings to be conducted in English. As we discussed in our previous update following the formal adoption of the NCC in 2016, this is one of the necessary changes in order for the NCC to be able to function. In this update, Ovidius addresses the essential elements of the legislative proposal.

Competence NCC/NCCA

The legislative proposal does not amend or change the legislation pertaining to the competence of the court. Only if the following criteria are met, parties may bring a case before the NCC/NCCA: (i) the courts of Amsterdam are competent to hear the case; (ii) it is a conflict with international dimensions, and (iii) parties have explicitly agreed to bring their case before the international commercial chamber of respectively the court of first instance (NCC) or the court of appeal (the Netherlands Commercial Court of Appeal, “NCCA”). The legislative proposal also allows for certain preparatory proceedings to be conducted in English, for example preliminary witness hearings. The NCC and NCCA are not competent with regards to cases that fall within the jurisdiction of the cantonal courts, or other cases that fall within the exclusive jurisdiction of other courts/chambers. Examples thereof are the Corporate Chamber (Amsterdam), the Patent Chamber (The Hague) or the Maritime Chamber (Rotterdam).

Language

As an exception to the rule that all legal proceedings must be conducted in Dutch, the proposal allows for certain proceedings to be conducted in the English language. Parties have to explicitly choose to do so; and such choice has to be documented. From the explanatory memorandum to the legislative proposal, it follows that a tacitly accepted choice for English proceedings with the NCC/NCCA, which (for example) is included in the general conditions of one of the parties, does not constitute as an explicit choice. In this respect, the legislative proposal intentionally deviates from the general rules for the validity of choices of forum as laid down in the Brussel I bis Regulation and the The Hague Choice of Court Convention.

Court fees

The court fees for the NCC and the NCCA are (much) higher than those for the regular court or court of appeal; respectively fifteen thousand euros (EUR 15,000.=) and twenty thousand euros (EUR 20,000.=). This is to ensure that the fees fully cover costs of the proceedings before the NCC and the NCCA. Moreover, the NCC and NCCA do not have different tariffs for individuals on the one hand and legal entities on the other hand, but use one standard tariff.

Defence against proceedings with the NCC/NCCA

Court fees are due the moment a party chooses to ‘appear’ in legal proceedings. Given the difference between the regular court fees and the NCC/NCCA court fees, this may be a burden to parties that consider the NCC/NCCA to be incompetent with regards to their case. The legislative proposal explicitly arranges for such situations: a party that only wishes to plead the incompetence of the NCC/NCCA, is, initially, only required to pay the regular (lower) court fees. Moreover, the proposal allows parties to plead the incompetence of the NCC/NCCA before they are required to respond to the claims of the claimant. Lastly, such defence may be conducted in Dutch, after which the NCC/NCCA will also issue its judgement in Dutch. In doing so, the legislative proposal tries to minimise the disadvantage of a party that is summoned before the NCC/NCCA against its will.

How do we go from here?

The legislative proposal will now be discussed by the Dutch House of Representatives. Once the proposal will have been accepted by the Dutch parliament, procedural rules will be issued that will include, among other, a list of definitions to ensure uniformity in the terminology used by the NCC and NCCA. Ovidius will keep you updated on the developments.