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Netherlands: Draft Law on New International Commercial Court

(Aug. 11, 2017) On July 18, 2017, Stef Blok, Minister of Security and Justice of the Netherlands, submitted draft legislation to the Dutch House of Representatives (Tweede Kamer) on the establishment of a new commercial court that would have the authority to render judgments in English on complex international trade disputes involving the Netherlands. (Legislative Proposal on Netherlands Commercial Court Submitted to Dutch House of Representatives, Ministry of Security and Justice website (July 18, 2017).)

According to the Ministry of Security and Justice, “[t]here is an increasing need in the Netherlands for dispute resolution in English,” given the wide use of English “in international trade and drawing up contracts, as well as in correspondence between legal, fiscal and commercial advisers and their internationally operating clients.” (Id.)  The new commercial court is important not only to meet this need, the Ministry indicated, but also, by conducting international trade case hearings in English, to ensure the role of the Netherlands in international trade.  (Id.)  There also appears to be a world-wide trend to establish international commercial courts, such as those recently set up in Singapore and Dubai.  (Annette Scholten, An International Netherlands Commercial Court?,TRANSNATIONAL NOTES (Feb. 28, 2017).)

Features of the Draft Legislation

The draft law provides for the amendment of the Dutch Code of Civil Procedure and the Act on Court Fees in Civil Proceedings to make it possible for English-language cases to be handled by an international commercial chamber of the Court of Amsterdam – the Netherlands Commercial Court (NCC) – and by the international commercial chamber of the Amsterdam Court of Appeal – the Netherlands Commercial Court of Appeal (NCCA).  (Legislative Proposal on Netherlands Commercial Court Submitted to Dutch House of Representatives, supra; TK Wetsvoorstel inzake Netherlands Commercial Court [TK Bill on Netherlands Commercial Court], Government of the Netherlands website (July 18, 2017) (click on pdf icon or hyperlink to download text); Wetboek van Burgerlijke Rechtsvordering [Code of Civil Procedure] (as last amended Apr. 1, 2017), OVERHEID.NL; Wet van 30 september 2010 tot invoering van een nieuw griffierechtenstelsel in burgerlijke zaken (Wet griffierechten burgerlijke zaken) [Act of 30 September 2010 on the Introduction of a New Court Fee System in Civil Proceedings] (Act on Court Fees in Civil Proceedings) (Sept. 30, 2010, as last amended effective Mar. 1, 2017) OVERHEID.NL.)

Among other measures, the draft legislation inserts a new article 30r in the Code of Civil Procedure, stating that if the NCC or the NCCA has jurisdiction to hear a dispute that has arisen or that will arise in connection with a particular legal relationship freely determined by the parties and that concerns an international dispute, and the parties explicitly agree to it, the parties may prosecute the case in the English language in the NCC or the NCCA. This does not apply to matters that fall under the jurisdiction of the district court.  The agreement to have the case heard in English is to be evidenced in writing; a document containing a clause on the agreement, or referring to such a clause in general terms, is sufficient for that purpose, provided that the specific clause has been expressly accepted by or on behalf of the other party.  (Id. art. IA, inserting art. 30r(1).)

If parties have agreed to adjudication by the NCC or the NCCA, the presiding judge will be responsible for handling the case in English. (Id. art. IA, inserting art. 30r(3).)  The court will also pronounce sentence in English, unless the proceedings have been conducted in Dutch at the request of the parties.  However, if a party lodges a defense that the case must not be dealt with by the international commercial division of the NCC or the NCCA, but by another court, the proceedings may be conducted in Dutch and the judge will render verdict in Dutch. (Id. art. IA, inserting art. 30r(4).) If a decision rendered in English must be registered in a Dutch public register in accordance with a legal requirement, the parts of the decision necessary for that registration will also be set down in Dutch.  (Id. art. IA, inserting art. 30r(5).)

Proposed changes to the Act on Court Fees in Civil Proceedings have to do with the payment of court fees for handling of the case by the international commercial division of the NCC or NCCA. (Id. art. IIA, inserting a new art. 9a in the Act.)

Other Aspects of the New Court

Three judges specialized in dealing with international trade disputes will hear each case that comes before the new court. The judges will be selected on the basis of such qualifications as their knowledge of private law, their knowledge of legal English and of American and English procedural law, and their experience in handling large and complex international trade disputes.  (Jurisdiction of the Netherlands Commercial Court, Netherlands Commercial Court website (last visited Aug. 1, 2017).)

The legislation on the court, the Netherlands Commercial Court Act (Wet Netherlands Commercial Court), is scheduled to come into force on January 1, 2018. (The Netherlands Commercial Court, Netherlands Commercial Court website (last visited Aug. 1, 2017).)