NCC seminar on class actions and enforcement (7 July 2023)

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Amsterdam, 14 July 2023

On 7 July 2023, the Netherlands Commercial Court (NCC) organised a seminar on collective actions and enforcement of judgments. More than 40 lawyers attended. 

NCC and collective actions

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. 

Enforcement of court judgments versus arbitral awards

Judge Bom (president of the NCC District Court), Professor Tzankova, Professor Meijer, Mr Bongaerts and Professor Kramer
Next, Professor Kramer (Erasmus University Rotterdam and Utrecht University), gave a presentation on the current state of enforcement of court judgment versus arbitral awards. She pointed to several developments facilitating the enforcement of court judgments:
- the 2005 Hague Choice of Court Convention, which is ratified by more and more states
- the 2019 Judgments Convention, which enters into force on 1 September 2023
- the Brussels I-bis Regulation (no. 1215/2012), which has greatly facilitated quick and easy enforcement in other Member States without judicial approval being required
- the domestic laws of most trading nations which allow for enforcement without a convention being in place.
The enforcement of NCC judgments is guided by the same rules applicable to any court judgment. It may be even easier, as the judgment is not drafted in Dutch but in English, and the international expertise of the NCC judges safeguards the judgment meeting the international enforcement criteria. 


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

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. 

Enforcement of arbitral awards

The enforcement of arbitral awards is governed by the New York Convention which currently has 172 signatory states. While this undoubtedly is an asset of arbitration, the mechanism of enforcement under this convention is not unproblematic in practice. It may take quite some time to have an arbitral award declared enforceable by the court of the place of enforcement. And there is always the possibility of annulment of the arbitral award by a state court. 
Professor Meijer (Erasmus University Rotterdam and president of the Netherlands Arbitration Institute, NAI) pointed out some of the advantages of arbitration compared to court litigation, but he also stressed that these dispute resolution options are complementary as well. It is very efficient to have the NCC Court of Appeal (NCCA) deal with any annulment claims, where English was the language of the arbitral proceedings. The NCC and NAI websites contain model clauses making this possible. Also enforcement proceedings regarding the enforcement of foreign arbitral awards in the Netherlands may be initiated before the NCCA. These types of proceedings are ‘within the autonomy of the parties’ as required by the NCC legislation (see this opinion of the Advocate General at the Supreme Court, referencing further sources). In addition, the Supreme Court ruled in this case that such proceedings can be brought before any Dutch court, and not just before the court of the place of the debtor’s assets.

NAI Arbitration Rules: place of arbitration will be Amsterdam

Professor Meijer announced that in the New 2024 NAI Arbitration Rules, which will be launched at the NAI AGM on 14 September 2023, the default ‘place of arbitration’ for proceedings at the NAI will be Amsterdam. This will facilitate the involvement of the NCC and NCCA in ancillary proceedings in relation to NAI Arbitration.