The Netherlands Commercial Court: Between Arbitration and Litigation

The Netherlands Commercial Court (NCC) is a specialized judicial institution designed to handle complex international commercial disputes. Established in early 2019, the NCC operates within the Dutch court system – it is a chamber of the Amsterdam District Court – and offers an interesting alternative to traditional arbitration for resolving cross-border business conflicts. The primary objective of the NCC is to provide a neutral, efficient, and reliable forum for parties engaged in intricate commercial disputes, particularly those involving international aspects.  The NCC interprets “international” broadly.  For example, a contact in English between Dutch parties may be deemed “international.”

Unlike arbitration, where disputes are resolved privately and outside the purview of the public court system, the NCC offers an advantage by providing access to a formal judicial process while maintaining a focus on expeditious resolution. This approach ensures that disputes are settled transparently within a legal framework, potentially alleviating concerns about the enforceability of awards and maintaining a degree of consistency with public legal principles.  The NCC also provides for the possibility of an appeal, something not available in arbitration. Parties opting for the NCC benefit from a court that is well-versed in international commercial law and staffed with judges who possess expertise in handling complex cross-border cases.  Academic research suggests that the judges of the NCC are capable of applying foreign law – that is, non-Dutch law, correctly.  (McKendrick, E., Luycks, J. M., Hendricks, A. M. M.,  "A NCC Case on Contract Interpretation from an English and Dutch Law Perspective." European Review of Private Law Year: 2021, Issue: 1, 71-89).

Jurisdiction of the NCC is conferred by party agreement, similar to the way arbitration is elected.  The NCC suggests the following clause:  “All disputes arising out of or in connection with this agreement will be resolved by the Amsterdam District Court following procedures in English [or Dutch] before the NCC, to the exclusion of the jurisdiction of any other courts.”  As in arbitration, parties may add additional procedural and evidentiary options as they see fit.  It is also worth noting the NCC’s model clause forecloses parallel proceedings and a race to Res Judicata.  

The option provided by the NCC may seem alien to US lawyers, who must contend with Fifth and Fourteenth Amendment due process requirements of the Constitution.  It is simply not possible to “elect” and thereby confer jurisdiction on a court.  Dutch law, unencumbered by such Constitutional requirements, imposes no such obstacles to contractual election of a court’s jurisdiction. 

The NCC offers an intriguing alternative to arbitrations, providing many of its benefits, while also providing the benefits of litigation in state court.