NCC judgment: motion contesting NCC clause denied

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Amsterdam, 15 April 2020

On 14 April 2020, the Court in Summary Proceedings (CSP) of the NCC (Netherlands Commercial Court) ruled on a motion made by the defendant arguing that the NCC should refer the case to another chamber of the Amsterdam District Court. The motion was denied.

Validity NCC clause

The issue in this case was whether the parties expressly agreed for proceedings to be in English before the NCC Court in Summary Proceedings. Under Article 30r DCCP, Dutch is the language of the motion on this preliminary issue [an English version of the judgment is provided as a courtesy].

The Court finds that there is a valid NCC clause as agreed by the parties:

  • Article 30r DCCP does not impose any requirement to the effect that an NCC clause is valid only if included in a document signed by the parties.
  • The requirement of an “express” agreement is met where the parties’ agreement in favour of NCC is clearly stated, was made with knowledge of the clause and was not hidden in one party’s general terms and conditions. 

NCC clause agreed upon?

In the Court’s preliminary analysis at this early stage, a reasonable person in the same circumstances as the motion defendant would have understood the documents to mean that disputes in connection with the Letter of Intent and the Transaction Agreement may be submitted to the NCC CSP:

  • An NCC clause is separate from the main agreement (in which it is included).
  • It is true that there is a formal requirement to enter into the transaction as a whole ('execute' and 'deliver'), and there is an entire agreement clause, but these points have little weight in the analysis of whether there is agreement on the NCC clause.
  • Given the close connection between the Transaction Agreement and the Letter of Intent, the NCC clause applies to disputes in connection with the Letter of Intent.
  • The motion claimant consistently uses English to communicate and is based in Amsterdam.
  • The motion claimant made numerous statements which, on a preliminary basis, warrant the conclusion that there was agreement on the NCC clause.

Pending arbitration

These summary proceedings are within the scope of the NCC clause because the ordinary meaning of the word ‘pending’ in the present circumstances is that an interim measure precedes and is without prejudice to the resolution of the dispute in arbitration.

The judgment is available on our website Judgment List).

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