For the NCC to hear a case, parties must agree a clause that takes the case to the NCC and makes English the language of the proceedings. The clause may, where necessary or appropriate, also include a choice of court. The NCC recommends using this language:

All disputes arising out of or in connection with this agreement will be resolved by the Amsterdam District Court following proceedings in English before the Chamber for International Commercial Matters (“Netherlands Commercial Court” or “NCC District Court”), to the exclusion of the jurisdiction of any other courts. An action for interim measures, including protective measures, available under Dutch law may be brought in the NCC's Court in Summary Proceedings (CSP) in proceedings in English. Any appeals against NCC or CSP judgments will be submitted to the Amsterdam Court of Appeal’s Chamber for International Commercial Matters (“Netherlands Commercial Court of Appeal” or “NCCA”). The NCC Rules of Procedure apply.

The NCC added the phrase “to the exclusion of the jurisdiction of any other courts” to a previous version of this clause in light of the Hague Convention on Choice of Court Agreements. Parties may of course delete this phrase. They may decide not to exclude the jurisdiction of other courts. They may make any alternative arrangements they consider appropriate, as long as such arrangements comply with the ordinary rules of jurisdiction and contract. But choice of court agreements are exclusive unless the parties have “expressly provided” or “agreed” otherwise (see Article 3(b) Hague Convention and Article 25(1) Recast Brussels I Regulation).

The clause must be expressly stated in the contract. A reference to general terms and conditions is not enough.

Absent prior agreement

Of course, parties may also make the appropriate arrangements after a dispute has arisen.

Pending actions before the Dutch courts

Effective 1 January 2019, parties in an action pending before another Dutch court, or before another chamber of the Amsterdam courts, may request that their case be referred to NCC District Court or NCC Court of Appeal. The case must meet the requirements of article 1.3 of the NCC Rules of Procedure. One of the requirements is to agree on a clause that takes the case to the NCC and makes English the language of the proceedings. The NCC recommends using this language:

We hereby agree that all disputes in connection with the case [name parties], which is currently pending at the *** District Court (case number ***), will be resolved by the Amsterdam District Court following proceedings in English before the Chamber for International Commercial Matters (“Netherlands Commercial Court” or ”NCC District Court). Any action for interim measures, including protective measures, available under Dutch law will be brought in the NCC's Court in Summary Proceedings (CSP) in proceedings in English. Any appeals against NCC or CSP judgments will be submitted to the Amsterdam Court of Appeal’s Chamber for International Commercial Matters (“Netherlands Commercial Court of Appeal” or “NCC Court of Appeal”). The NCC Rules of Procedure apply.

To request a referral, make a motion before the other chamber or court where the action is pending, stating the request and contesting jurisdiction (if the case is not in Amsterdam) on the basis of a choice-of-court agreement (see before). For more information, see the Explanatory Notes, article 1.3.1 (c) and (d)).

Additional arrangements

Before or during the proceedings, parties can also agree special arrangements in a customised NCC clause or in another appropriate manner. Such arrangements may include matters such as the following (“Article” refers to the Articles in the NCC Rules of Procedure:

• the law applicable to the substantive dispute (see Article 1.2.1)
• the appointment of a court reporter for preparing records of hearings and the costs of preparing those records (see Article 7.7.3)
• an agreement on evidence that departs from the general rules (see Article 8.3)
• the disclosure of confidential documents (see Article 8.4.2)
• the submission of a written witness statement prior to the witness examination (see Article 8.5.2)
• the manner of taking witness testimony (see Article 8.5.4)
• the costs of the proceedings (see Article 10.2).