Ianika Tzankova (Professor at Tilburg University and lawyer at Birkway law firm) and her Birkway colleague Mr Quirijn Bongaerts, who typically represent claimants in collective actions, kicked off with some thought-provoking statements on why no collective actions have been brought before the NCC so far.

Statement 1): the lawyers of both the claimant and the defendant have a shared cultural and economic interest in litigating in the Dutch language.

Statement 2): the defendant's aim is to obstruct the proceedings as much as possible. That does not match with the speedy handling of cases by the NCC.

Statement 3): the 'territorial admissibility requirement' in the Dutch legislation (known by its acronym 'WAMCA') which limits collective actions to only those that are connected to the Netherlands, prevents the initiation of truly international collective claims at the NCC.

Some lawyers, typically representing defendants in collective actions, disagreed with statements 1 and 2. They have no problem with foreign lawyers handling the litigation in these types of cases. It is not their aim to obstruct or delay proceedings, but to coordinate similar cases pending in other jurisdictions. They said that the adversarial position of the parties makes it harder to agree on taking a collective action to another chamber than the regular Dutch-speaking chamber of the court having jurisdiction. And a defendant is hesitant to give the collective organisation initiating the proceedings credibility by agreeing to have the NCC deal with the dispute.

All agreed that the 'scope rule' may be an issue, but - as Mr Bongaerts pointed out - the legitimacy of that rule is under close scrutiny. A Dutch court already ruled that there are serious doubts as to whether this rule is in accordance with EU law. Professor Van der Plas, Leiden University, and Professor Kramer, for her credentials see below, are just a few of the scholars who argue that it is not.

Mr Bongaerts concluded by saying that considering all this, the NCC may be particularly suited for proceedings declaring a settlement in a collective action universally binding. 

Professor Kramer pointed out that, whereas the UK is no longer a Member State and an old bilateral convention does not apply post-Brexit, UK judgments tend to be enforced in the Netherlands under domestic law, as are Dutch judgments in the UK. Moreover, the UK is also a party to the Hague Choice of Court Convention.

Asymmetrical choice of forum clauses, which bind one party to the jurisdiction of only one specific court and allows the other party to bring the case in another court having jurisdiction on the basis of the applicable rules, are not allowed under the 2005 Choice of Court Convention. This Convention only applies to exclusive choice of court agreements, and the commentary to the convention makes clear that one-sided exclusive agreements are not within the scope. However, these types of clauses are allowed under the Brussels I-bis Regulation and are not an obstacle to enforcement under the  2019 Judgments Convention.