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Global | Publication | September 2016
The Dutch Council for the Judiciary proposed a plan to establish a new court in the Netherlands: the Netherlands Commercial Court (NCC). The legal proceedings before the NCC will, in principle, be conducted in the English language. It is envisaged by the Dutch Council of the Judiciary that the NCC will open its doors on 1 January 2018, following the establishment of similar commercial courts in London, Dublin, Delaware, Dubai and Singapore. In this article we consider whether proceedings before the NCC might (also) be of interest to non-Dutch based insurance companies in relation to claims in the Netherlands. As a result, insurers might wish to consider amending existing choice-of-forum clauses and consider including an NCC choice-of-forum clause in their new insurance contracts.
The NCC will be a specialised court, focusing on large and complex international commercial disputes such as contractual disputes, tort claims, property law disputes and corporate disputes. According to the plans, the NCC will reside in the existing district court and court of appeal of Amsterdam.
The Dutch Minister of Security and Justice informed the Dutch Parliament that legislation altering existing Dutch civil procedure law will be proposed during the course of this year, in order to create the NCC.
Although the procedural rules of the NCC have not yet been published, the plan of the Dutch Council for the Judiciary, sets out the following principles:
According to the plans, the NCC will be financed solely out of court fees. The costs per case are currently estimated at approximately €26,500. It is not yet determined how the court fees per party will be calculated. However, it is to be noted that these costs are higher than the ‘general’ court proceedings in the Netherlands in relation to complex and large international commercial disputes, where the court fees amount up to a maximum of €7,806.
It is possible for parties to agree on the amount of legal costs, prior to or at the start of the legal proceedings before the NCC. Where parties do not agree on the amount of legal costs, the NCC will apply the court-approved scale of costs.
The NCC may also prove to be a viable alternative to arbitration. Key differences between arbitration and proceedings before the NCC are:
As of 2018, parties will (likely) have the option to choose to resolve their dispute through the NCC, which will provide for modern, efficient and pragmatic (partly electronic) proceedings, in English. The relatively low costs compared to other commercial courts, the expected efficiency and the current reputation of Dutch courts in general are expected to give the NCC a strong starting position for competing in the international arena of (alternative) dispute resolution and will provide a civil law based alternative to generally common law based existing commercial courts.
In the Dutch market, it is not uncommon that insureds are insured with non-Dutch based insurance companies. Proceedings before the NCC may be particularly appealing for such insurers as they provide for the possibility of proceedings before a Dutch court in English, both in relation to written communications as well as court hearings.
This is expected to result in greater involvement by the non-Dutch based insurance companies during legal proceedings in the Netherlands, more efficient communications between non-Dutch based insurance companies and their counsel in relation to the proceedings and greater cost efficiency to the proceedings in general.
The above will clearly be of benefit to insureds against whom proceedings have been brought and to insurance companies in disputes over coverage.
In order for policy disputes to be resolved through the NCC, insurers need to consider amending existing choice-of-forum clauses and including an NCC choice-of-forum clause in their new insurance contracts. Alternatively, insurers could agree with their insured that policy disputes will be resolved before the NCC.
Nina Varumo is a freelance portrait and documentary photographer based in Stockholm. A recent project of hers Kvinnor till sjöss (‘Women at sea’) is on ongoing photo series highlighting the working life of female seafarers in order to change the stereotypical image of what and who is a seafarer.
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