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). 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.
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
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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 (made for purposes of the request). For more information, see the Explanatory Notes, article 1.3.1 (c) and (d)).
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
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- 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).