A new specialised court in town: the Netherlands commercial courts

The Netherlands is an established jurisdiction for bringing European follow-on damages procedures. Examples include the SodiumchloratParaffinwachs und Truck cartel cases. Cartel-damages cases are perfect examples of international disputes in which either the claimant or defendant, or both parties, are foreign companies coming from several European Member States. To illustrate by an example, the Sodium Chlorate case started as an action for damages against the three members of the European wide cartel by CDC Cartel Damage Claims. The action consisted of damages of ten pulp and paper companies with 27 production sites located in nine European countries representing almost half of the overall European demand for sodium chlorate.

The popularity of the Dutch jurisdiction for bringing follow-on procedures is due to its many positive features, such as efficiency, high quality and low costs. The jurisdiction however also has disadvantages, such as the leading litigation language – Dutch – which is understandably not everybody’s first or second language and the fact that the procedures can take place in several general courts. The first disadvantage leads to unnecessary costs as a consequence of the many translations that must be completed and interpreters that need to be hired.

The legislative bill, which was accepted by the Dutch House of representatives in March 2018 and approved by the Dutch Senate on 11 December 2018, will greatly improve this. The bill involves the introduction of two specialised chambers of the Amsterdam District Court and the Amsterdam Court of Appeal (Netherlands Commercial Court [NCC] and Netherlands Commercial Court of Appeal [NCCA]) focussing on international trade disputes with specialised judges, including in competition law, having the possibility to conduct the legal proceedings in English. The future judges and staff of these specialised chambers will be selected from all Dutch courts for their specialised expertise as well as their fluency in the English language.

Not all disputes can be heard before these courts. The requirements to be fulfilled include the fact that the dispute needs to have an international component, both the claimant and defendant must agree with filing the case at the NCC and NCCA and the claims should exceed EUR 25,000. The court fees for these procedures are higher than regular proceedings before Dutch courts. The reason for this is that the Dutch Government wants to offer the procedure cost-neutral on the total budget for the judiciary thereby preventing that the costs will be paid by the Dutch taxpayer. The proposed court fee for the NCC will be EUR 15,000 and for the NCCA EUR 20,000.  Although Dutch is no longer the litigation language, both parties will be represented by at least one attorney admitted to the Dutch Bar.  In addition, if the procedure would continue to the Dutch Supreme Court which remains the court of highest instance, litigation before the Dutch Supreme Court will still take place in the Dutch language.

Non-Dutch claimants and defendants will view this development in a very positive light further enhancing the attractiveness of taking cases the Netherlands.

by Annalies Outhuijse

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