Arbitration and court litigation are, obviously, options that practitioners should and do consider as they think about how to deal with international business disputes. But it need not be an either/or choice.

Parties who agree to arbitrate a dispute may designate the NCC District Court or NCC Court of Appeal, as the case may be, as the appropriate chamber for any court litigation needed before, during or after the arbitral proceedings. This will enable them, e.g., to file a setting-aside claim with the NCC Court of Appeal in English.

The Arbitration Chapter in the Dutch Code of Civil Procedure contains several provisions where the courts may intervene and deal with an arbitration-related issue. For the available options see below.

For the NCC District Court or NCC Court of Appeal to hear such a case, the general NCC requirements need to be fulfilled (see below), and the place of arbitration must be Amsterdam. The ‘place of arbitration’ is merely a legal concept: the hearings may take place anywhere in the world. Furthermore, the parties need to agree on a clause taking the case to the NCC District Court or NCC Court of Appeal. The clause may be included in general terms and conditions, provided there is express acceptance of this clause in the agreement itself or in any other document produced by the parties.

Model clause

The NCC recommends using this language:

All disputes arising in connection with the present agreement, or further agreements resulting therefrom, shall be settled in accordance with the arbitration rules of [arbitration institute]. The place of arbitration shall be Amsterdam (the Netherlands). The proceedings shall be conducted in English.
Any court proceedings in the Netherlands before, during or after the arbitration will - to the extent allowed by law - exclusively be dealt with by the Amsterdam District Court or the Amsterdam Court of Appeal, whichever has jurisdiction, following proceedings in English before the Chambers for International Commercial Matters (Netherlands Commercial Court, which consists of the NCC District Court, the NCC Court in Summary Proceedings and the NCC Court of Appeal). The NCC Rules of Procedure (see www.ncc.gov.nl) apply to these proceedings. This clause is not intended to exclude Supreme Court appeal.

Model NAI Arbitration + NCC Court Litigation Clause

The Netherlands Arbitration Institute (nai.nl) (NAI), a leading organisation for commercial dispute resolution, based in the Netherlands, and the NCC see added value in offering parties the option to combine NAI arbitration and NCC court litigation, both to be dealt with in English. This empowers parties to make their proceedings more cost-efficient and expeditious. To give just one example, the parties, once an award has been rendered, would be able to file a setting-aside claim with the NCC Court of Appeal in English. Such legal actions no longer need to be dealt with in Dutch, saving the parties time and costs.

Parties who agree to arbitration under the rules of the NAI may designate the NCC District Court or NCC Court of Appeal, as the case may be, as the appropriate chamber for post-award - and sometimes even pre-award - court litigation. For the NCC to hear such a case, the general NCC requirements need to be fulfilled (see below), and the place of arbitration must be Amsterdam. The ‘place of arbitration’ is merely a legal concept: the hearings may take place anywhere in the world (Article 1037(3) Dutch Code of Civil Procedure, DCCP).

The NAI and the NCC recommend using this language in the parties’ arbitration clause:

All disputes arising in connection with the present agreement, or further agreements resulting therefrom, shall be settled in accordance with the Arbitration Rules of the Netherlands Arbitration Institute (NAI). The place of arbitration shall be Amsterdam (the Netherlands). The proceedings shall be conducted in English.

Any court proceedings in the Netherlands before, during or after the arbitration will - to the extent allowed by law - exclusively be dealt with by the Amsterdam District Court or the Amsterdam Court of Appeal, whichever has jurisdiction, following proceedings in English before the Chambers for International Commercial Matters (Netherlands Commercial Court, which consists of the NCC District Court, the NCC Court in Summary Proceedings and the NCC Court of Appeal). The NCC Rules of Procedure (see www.ncc.gov.nl) apply to these proceedings. This clause is not intended to exclude Supreme Court appeal.

Explanatory notes

The phrase “to the extent allowed by law” refers to the legal requirements for NCC’s role:

• jurisdiction of the Amsterdam courts,
• the action concerns an international civil or commercial matter within the autonomy of the parties and
• an express agreement between the parties for their case to be dealt with in English before the NCC. The clause may be included in general terms and conditions, provided there is express acceptance of this clause in the agreement itself or in any other document produced by the parties.

The Amsterdam District Court has jurisdiction where:

• a choice for this forum has been made and is allowed under the Arbitration Chapter of the DCCP, or 
• the Court has jurisdiction under the general rules (e.g., domicile of the defendant).

Available options for court litigation

The Arbitration Chapter in the DCCP contains several provisions where the courts may intervene and deal with an arbitration-related issue. The English text of this Chapter is available for download on the NAI website (nai.nl). The Arbitration Chapter is also included in the book “Code of Civil Procedure - Selected Sections and the NCC Rules”, which is available for purchase from Eleven.

! In some cases, the law allows parties to have a third party deal with a certain matter instead of a court. Therefore, careful scrutiny of the specific arbitration rules is advised before initiating arbitration-related proceedings before the NCC.

The NCC Court in Summary Proceedings:

• interim and protective measures, including inspection of a copy of or an extract from specific documents, if the decision sought cannot - or cannot in a timely manner - be obtained in arbitration (Articles 1022c and 1074d DCCP),
• determination of the number of arbitrators (Articles 1026(2) and 1072 DCCP), 
• the appointment of arbitrators (Articles 1026(4), 1027(3) DCCP), 1028(1) and 1072 DCCP),
• the release of an arbitrator or arbitral tribunal from their mandate (Articles 1029 (2)(4)(5) and 1072 DCCP),
• the challenge of an arbitrator or of the third party who dealt with such a challenge (Articles 1035(1)(7) and 1072 DCCP),
• the appointment of a judge to hear an unwilling witness (Articles 1041a(1), 1074c and 1072 DCCP),
• the consolidation of arbitral proceedings pending in the Netherlands (Article 1046 DCCP),
• the revocation, suspension or reduction of a penalty imposed by an arbitrator (Article 1056 DCCP)
  

The NCC District Court:

• ordering a preparatory evidentiary hearing, (Articles 187, 1022b and 1074b DCCP), provided Amsterdam is the court that is expected to have jurisdiction to hear the case, or the persons to be heard as witnesses, or the majority of them, have their domicile or habitual residence in Amsterdam,
• ordering a preparatory experts’ report or preparatory on-site inspection, provided the Amsterdam District Court is the court that is expected to have jurisdiction to hear the case (Articles 203, 1022b and 1074b DCCP)
• inspection of a copy of or an extract from specific documents (Article 1022b).

The NCC (CSP) has no jurisdiction where it concerns matters outside the autonomy of the parties. This may apply to the following issue:

• a declaration of enforceability of an arbitral award made in the Netherlands (Article 1062 DCCP).

The NCC Court of Appeal:

• a claim for setting aside an arbitral award: this claim may be brought before the NCCA Court of Appeal, if the place of arbitration is located in the Amsterdam appellate district and the parties have expressly so agreed (Article 1064a (1) DCCP),
• the suspension of the enforcement of an award pending setting aside proceedings (Article 1066 DCCP),
• the revocation of the arbitral award on grounds of fraud, falsification or new documents (Article 1068 DCCP).

The NCC Court of Appeal has no jurisdiction in respect of matters outside the parties’ autonomy. This may apply to the following issues:

• a declaration of enforceability of an arbitral award made outside the Netherlands (Article 1075 DCCP),
• an appeal against a decision not to give leave for enforcement of an arbitral award made in the Netherlands (Article 1063(4) DCCP).