Efficient proceedings in English and experienced judges specialized in international commercial matters are the NCC’s unique selling points

What is your general impression of the NCC until now?

We got off with a good start, with our first case within 2 months. We have had various interesting cases and others are coming in. Parties are from all over the world. However, it proves to be a challenge to rapidly increase the number of cases. Apparently, it takes time. We see that with other recent international  commercial courts as well. A survey shows that the lawyers that appeared before the NCC are all very positive and our judgments are well received in the legal community. That gives me a great deal of confidence in the future of the NCC.

What are the main advantages for litigating before the NCC?

The Dutch have a history of international trade and the Dutch court system has a good reputation internationally. The NCC was founded to provide international proceedings in The Netherlands entirely in English: the documents of process, the hearing and the judgment. This enables foreign parties to join the hearings in the courtroom or online without the need for an interpreter. When scheduling the hearing we also take the time zone of the parties into account, so that they are able to join online. This resulted in party representatives or in-house counsel joining the hearing from places such as the US, the Philippines, China, Singapore and Japan.
The NCC consists of selected judges from all courts in the Netherlands with extensive experience in international commercial litigation. In addition, we have specialised judges – including professors – covering a wide range of legal areas. We aim at dealing with all cases efficiently, cost-effective, flexible where appropriate and in accordance with internationally accepted best practices. We place a high value on proactive case management. The NCC also provides for summary proceedings, which have been brought to us on many occasions, enabling parties to obtain a judgment in just a few weeks.

What are the differences between litigating before the NCC and arbitration?

There are a number of differences. I am not that saying that the NCC is “better” than arbitration. It depends on your dispute. But, first of all, in the NCC the matter is dealt with by three experienced judges, which in arbitration is generally not the case. Arbitrators may be experts in certain areas, but being a judge requires certain skills in dealing with cunning litigation lawyers, preventing delays, a good knowledge of the law, and so on. Arbitrators may not always have these skills.
Next, it is fair to say that proceedings before the NCC are generally much faster, as follows from this flyer- You are leaving Rechtspraak.nl, which is based on data from various arbitration institutes. Our active case management proves to be very helpful in this respect. Should you wish, for tactical reasons, to delay the proceedings, then I would not recommend the NCC.
Costs may be an issue. Generally speaking, arbitration is much more expensive. This is because the NCC charges a flat court fee- You are leaving Rechtspraak.nl, which does not vary based on the value of the claim, whereas in arbitration the arbitrators will usually charge an hourly rate that can run quite high. And the adverse costs awarded are also manageable and foreseeable because of the court’s rate system for lawyers’ fees- You are leaving Rechtspraak.nl. On the other hand, the costs of arbitration proceedings are useful as a deterrent, to encourage the other party to enter into settlement discussions.
What more? It is often said that arbitration proceedings have the advantage of being confidential, whereas court proceedings, such as the NCC, are not. But bear in mind that an arbitral award may be set aside by a court, and thus may nevertheless become public. Altogether, I would think that it is wise to consider what possible dispute may arise when drafting an agreement and selecting the forum.

NCC cases must be international in nature. Does this mean that one of the parties must be domiciled outside of the Netherlands?

The internationality of the matter is a requirement- You are leaving Rechtspraak.nl for the NCC to have jurisdiction. But a case between two Dutch companies may nevertheless fulfil this requirement, as we have seen in a couple of cases- You are leaving Rechtspraak.nl. The definition of ‘international dispute’ is quite broad, as is evidenced by the explanatory notes to our Rules of Procedure- You are leaving Rechtspraak.nl. However, in almost all cases a foreign party was involved.

Where did these foreign parties come from?

As said, 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. Actually, two-thirds of the parties are from outside the EU. Apparently, there are parties from all over the world having confidence in the NCC. And most of the parties are from common law jurisdictions, which we did not expect as the Netherlands is a civil law country.

What types of proceedings were brought before the NCC?

We have been dealing with a variety of cases, SPA’s, distribution agreements, financial agreements, shipbuilding, clinical trials, poaching of personnel and so on.

We also dealt with many summary proceedings, which are proceedings requiring an urgent decision, within a couple of weeks. This may be explained by the special nature of summary proceedings in the Netherlands. They are not limited to certain areas of law or subject-matters, but can be about anything. Such as an order to compel a buyer to close a transaction in an M&A deal- You are leaving Rechtspraak.nl or to appoint two new directors at a company- You are leaving Rechtspraak.nl. These matters require an urgent decision in order for the parties to know how to proceed in their legal relationship. And while technically summary proceedings are interim in nature, they may become - and often are – final, because the parties accept the court’s judgment and do not initiate main proceedings.

We have also seen many restructuring cases- You are leaving Rechtspraak.nl in summary proceedings. These cases concern financing provided to a company or a group of companies, where repayment is secured through a pledge over the shares. If the company defaults on repayment, the pledgee may enforce its pledge by means of a private sale following a ruling of the court to that effect. The ruling is often granted within a couple of weeks, without the possibility of appeal, thus enabling a short-term enforcement of a pledge.  

What should lawyers do to bring a case before the NCC?

The most important requirement is that you include a clause in your contract designating the NCC as the chamber that will deal with any disputes arising from the agreement. It is also possible to agree on the NCC after the dispute has arisen. Our website has a model clause- You are leaving Rechtspraak.nl in English which we recommend.

Thank you for this interview.

Thank you.