As the title suggests, this is not a definitive report on the functioning of the NCC. Rather, it is an interim assessment of the NCC's first six years since its launch in 2019. It provides insight into possible developments and improvements in the NCC's remaining inaugural term. When the NCC was established in 2019, it was anticipated that the start-up phase would span a decade. However, this was just an expectation. The report seems to suggest, albeit cautiously, that the start-up phase may take a little longer.

According to the NCC, this is not unusual for new initiatives undertaken on a completely voluntary basis, with all parties having to opt for the NCC before it will hear a case. Evidence of this can be seen in the report's examples of previous initiatives by the Council for the Judiciary based on Article 96 of the Dutch Code of Civil Procedure (p. 61), the Enterprise Chamber and the English-language Maritime Court (p. 62). The Enterprise Chamber also had a slow start in terms of caseload, but there now appears to be a significant demand for this specialised form of judicial procedure.

It is also evident from the experiences of foreign commercial courts comparable to the NCC that a fully voluntary commercial court will have a low caseload in its start-up phase. In the first six years of the Frankfurt Commercial Court's existence, only ten cases were filed.

• See Figure 3.24 on page 105. Incidentally, the relevant statutes were recently amended in Germany, often citing the NCC as an example. The WODC has not researched other English-language commercial courts, either existing or those currently being established in countries such as Switzerland, Italy, Austria and Cyprus. 

A total of 43 cases were filed with the NCC/NCCA in the first six years: 37 with the NCC (p. 42) and 6 with the NCCA (p. 52). In addition to Netherlands-based litigants, the parties to these cases came from all over the world: Asia (India, the Philippines, Hong Kong and Singapore); Russia; Turkey; the United States; the United Kingdom; Switzerland; and the European Union (see Figure 2.5). This suggests that parties from all over the world are familiar with and have confidence in the NCC.

The commercial courts of Paris (more than 200 cases per year; see Figure 3.25) and London (more than 500 cases; Figure 3.22), investigated by the WODC, handled substantially more cases. However, these courts are not comparable to the NCC because they hear cases on a statutory, rather than a voluntary basis. This demonstrates the significant potential for international cases, but highlights the need for the mandatory use of the international commercial division, as opposed to the legislator's voluntary approach in the case of the NCC (p. 11).

The report contains five 'summaries': one at the beginning, one at the end, one in English, one conclusion and one closing statement. These differ from each other. These summaries do not capture the gist of the study. While the study paints a balanced picture (the NCC is on track, the quality is good, and there have been positive reactions from the legal profession, and proposed areas for improvement), the summaries, conclusion and closing remarks are, on balance, critical in tone. Another important fact missing from the report is that the NCC has achieved virtual budget neutrality in its personnel costs in 2024, although the start-up costs for the digital portal have yet to be recouped.
This is important to point out, as many readers will probably only look at one of these summaries.

The WODC concludes that the number of cases submitted to the NCC during its first six years fell short of initial expectations. The NCC agrees with this assessment, but notes that:

1. these were not expectations, but estimates
2. these estimates were uncertain and could end up significantly higher or lower (p. 22)
3. these estimates were based on the Council for the Judiciary's proposal (this was based in turn on research conducted by the Boston Consulting Group -p. 22 -), but subsequent legislation enabling the NCC's establishment placed restrictions on its powers in order to protect small businesses (e.g. the 'local hairdresser'), which were not factored into the estimate (pp. 9 and 118).

These jurisdictional limitations are set out on pages 63 et seq:

1. The entirely voluntary nature of proceedings before the NCC (all parties must give their consent). This consent must be given in writing and must be agreed “expressly"; a choice of forum clause in a party's general terms and conditions does not suffice
2. the NCC does not hear disputes that fall outside the parties' autonomy to agree
3. the case must be international in nature and conducted in English.

These constraints have had a significant impact on the reliability of the estimates, yet no adjustments have been made in response to the limitations imposed by the legislature. As the WODC concludes, 'It is debatable to what extent it is realistic to expect that the figures quoted in the explanatory notes to the Act will be achieved' (p. 120). The NCC concurs with this conclusion.

For the establishment of the NCC, reaching the estimated number of cases was not an end in itself, but rather part of the objective of having the NCC's costs fully covered by the higher court fees ('budget neutrality', p. 13). However, given that the actual number of cases filed falls short of the estimate on which the court fees are based, budget neutrality has not yet been achieved. Nevertheless, the NCC notes that budget neutrality was not expected to be achieved until after the 10-year start-up phase, i.e. in 2029. The report does, however, show a trend indicating that the difference between the NCC's expenditure and revenue (court fees) is gradually decreasing (Figure 2.11). This suggests that, over time, these expenses could be entirely covered by revenue. In 2024, the NCC's personnel costs (€327,000 for judges and support staff, p. 56) were almost entirely covered by court fees (€310,000, Figure 2.13). This stands in contrast to regular commercial divisions, where only a fraction of personnel costs are covered by court fees.

The high start-up costs in the first five years were mainly due to the digital case portal used for communications between the NCC and the parties to the proceedings. Digital communications were one of the prerequisites for establishing the NCC (pp. 20 and 36). These costs have since fallen substantially (see Figure 2.13), bringing the break-even point ever closer.

The WODC surveyed various Dutch lawyers and in-house counsel, This revealed that:

• there is widespread awareness of the NCC's existence: 100% of lawyers and around 72% of in-house counsel are aware of it (p. 66)
• there is also widespread familiarity with the main features of NCC procedure: only 3-4% of in-house counsel are completely unfamiliar with NCC procedure, as opposed to 100% of lawyers who are entirely familiar with it. However, there is room for improvement, as 21-29% of in-house counsel are only somewhat familiar with NCC procedure (p. 67).
• the NCC is seen as a viable option by 31% of in-house counsel at multinationals (p. 68) and 42% of lawyers (p. 69). Considering the NCC's brief existence and the various alternatives in place since long before its inception, such as arbitration, Dutch-language courts and foreign courts, this is a substantial achievement.
• the probability of lawyers and in-house counsel initiating NCC proceedings in the future ranges from 41% (in-house counsel) to 65% (lawyers) (see Figure 3.5 on page 70; percentages have been added up where the probability exceeds 40%). This percentage is higher amongst lawyers who have previously litigated cases before the NCC. Only 7% of these lawyers would no longer recommend initiating such proceedings (pp. 86 and 114).
• lawyers who initiated NCC cases had high expectations of the quality of proceedings, and those expectations were exceeded (pp. 89 and 114). 82% of lawyers were satisfied to very satisfied; 9% were dissatisfied; 9% were neutral (Figure 3.21, p. 90). On average, they had a positive view of the costs, flexibility, speed, quality of rulings and efficiency. Both the English-language proceedings and the expertise of the judges exceeded expectations (p. 89).

The NCC is gratified that lawyers who have litigated cases before the NCC were satisfied or very satisfied, and the vast majority (93%) would probably do so again. The expertise of the judges and the fact that the proceedings were conducted in English also exceeded expectations, which must be considered positive factors. This indicates that the objective of providing high-quality, specialised justice that responds to the needs of those engaged in international business has been met.

However, there is room for improvement concerning the familiarisation of in-house counsel with NCC procedure. This may increase the likelihood of proceedings being brought before the NCC. The NCC will act on the WODC's recommendation in this regard (see p. 118).

The WODC also looked into ways to increase the number of cases filed. The researchers collated the various suggestions for improvement that had been made during interviews and surveys, and included them in their report. They did not express any preferences, as this was not within the remit of the study.

The NCC would like to emphasise two things: first, that improvements are possible, and second, the need to identify which improvements are most likely to result in more cases being submitted to the NCC. The NCC is making good progress, but more cases are needed to cover the full start-up costs. The NCC has calculated that the number of cases does not have to be 125 per year, as was assumed in the planning stage, but around 50. This requires amendments to the statutory restrictions initially imposed on the NCC's jurisdiction, as set out in Article 32a of the Dutch Code of Civil Procedure.

As previously mentioned, the NCC will begin raising awareness among Dutch and foreign in-house counsel of the key features and benefits of NCC procedure. The effect is not expected to be felt until the longer term, and at this point the actual effect is uncertain. Surveys of in-house counsel and lawyers show that factors such as tradition (where the standard agreement model specifies a different district court) and the course of negotiations (it is unhelpful to raise the issue of jurisdiction during negotiations) also influence whether the NCC is chosen (p. 70). Like any other regular court, the NCC cannot accommodate requests for confidential proceedings to which the public does not have access.

Essentially, the suggested improvements concerning the statutory restrictions boil down to removing those that do not currently apply to Dutch-language commercial chambers.

1. Make the NCC less voluntary. As in other cases where more than one court has jurisdiction, claimants may choose to bring cases before the NCC. If this happens, the proceedings will be conducted there, unless the court rules that the dispute should be heard elsewhere to avoid putting the defendant at an unreasonable financial or other disadvantage (under the 'hardship clause'). A defendant may invoke this hardship clause if they have a valid reason for not attending the NCC proceedings, such as inability to pay the court fees. The court could decide to reduce the court fees for such a case to the standard district court level, enabling the NCC to hear it (p. 92). This is in line with both the Experiments Act [Experimentenwet] and the Proximity Judge [Nabijheidsrechter] experiment.
   Under the current regulations, consumers already cannot be subjected to proceedings before the NCC against their will (see Article 23 of the Brussels I Regulation (recast) and Articles 8(3) and 108(2) DCCP).  Thus, the hardship clause essentially serves to protect small enterprises with fewer than 50 employees (Article 6:235(1)(b) DCC). Following this change, the restrictions will no longer apply to all businesses, both large and small, but only to small businesses that require protection. Incidentally, surveys conducted by the WODC indicate that the vast majority of in-house counsel and lawyers do not view the higher court fees as an obstacle to initiating proceedings before the NCC (p. 113).
• Lawyers who participated in the WODC survey agree that the problem lies in the entirely voluntary nature of the procedure. The most frequently cited reason for not initiating proceedings with the NCC was the other party's refusal to consent (p. 114).
• This change will result in a substantial rise in cases, as those where no prior choice of forum for the NCC has been made (including all tort cases, competition cases and collective actions) cannot (easily) be brought before the NCC. Competition and collective action cases require a significant amount of time and energy from regular commercial chambers. If these cases are handled via the NCC, they can be distributed amongst judges from multiple district courts.
  The NCC will also be able to hear proceedings initiated by application where there are numerous interested parties who had no say in the choice of forum. This could include cases brought under the Dutch Act on the Confirmation of Private Plans [Wet homologatie onderhands akkoord, or 'WHOA'].
2. Remove the requirement that the NCC be chosen 'expressly' and that the matter be 'within the autonomy of the parties to agree'.
• This will lead to a certain increase in cases, as it will enable the NCC to be specified as the chosen forum in general terms and conditions. It will also make it clear that the NCC can hear all arbitration-related cases, as well as insolvency-related cases (e.g. WHOA) and exequatur cases.

However, the legislature is responsible for making these improvements. The NCC hopes that the remaining start-up period will be used to discuss these improvements with the legislature.

The NCC is making good progress, and the objective of providing high-quality, specialised justice that responds to the needs of those engaged in international business has been met. In 2024, the NCC achieved virtual budget neutrality in terms of personnel costs despite the fact that far fewer cases were filed than had been estimated at its inception. Improvements can be made to recoup the remaining start-up costs within the start-up period, which ends in 2029.