Foreign direct investment screening in the Netherlands – FAQ
Much like in other EU Member States, Foreign Direct Investments (FDI) screening has become a hot topic in the Netherlands. …
On 8 March 2018 the Dutch House of Representatives adopted a bill pertaining to the establishment of the Netherlands Commercial Court (NCC). This special chamber of the Amsterdam District Court and Amsterdam Court of Appeal will specialise in hearing extensive trade disputes with an international aspect, using English as the working language. All political parties voted in favour of the new legislation. This constitutes a major step towards the establishment of the NCC. The bill is expected to be discussed by the Senate later this year. It looks like the NCC will actually be opening its doors in the near future. That is good news.
The NCC meets the need of Dutch businesses with international operations for an English-speaking venue for international trade disputes in the Netherlands. The NCC will be a special chamber of the Amsterdam District Court and Amsterdam Court of Appeal, to which parties may voluntarily submit complex international trade disputes. In order to litigate before the NCC, there must be a dispute with an ‘international aspect’. This may include cases in which at least one of the parties resides or has a registered office abroad, or disputes concerning legal facts and legal acts that occurred outside of the Netherlands. It is also important that the parties have explicitly agreed (or do subsequently agree) to submit their dispute to the NCC.
The goal of the NCC is to allow the parties to litigate in a time- and cost-effective way. This way, the NCC intends to offer an attractive alternative to the London Commercial Court and the Singapore Commercial Court, for example, but also to arbitration and ‘ordinary’ courts. The NCC offers the following advantages.
Firstly, the parties have the possibility to litigate in the English language. This is in line with common international business practice where English is usually the working language. The NCC may also render judgments in English. In addition, the proceedings will be heard by three specialised judges, both at first instance and on appeal. This distinguishes the NCC from other commercial courts, where cases are decided by one judge at first instance. Moreover, in principle arbitration does not offer the possibility of appeal.
Furthermore, Dutch procedural law will apply, and Rules of Procedure, drawn up specifically for the NCC, will be in place. These Rules will also incorporate elements from other legal systems. Dutch procedural law is generally perceived as efficient, for example because the Netherlands has no extensive discovery / disclosure (as in the US and UK) and costs orders usually amount to a fraction of the costs actually incurred. However, Dutch procedural law also has its disadvantages, such as the fact that the official record of witness examinations is a summary drawn up by a judge, rather than a verbatim record. Foreign lawyers are usually surprised to hear this, and rightly so. The NCC accommodates this: the NCC is expected to offer parties the possibility of having the court reporter draw up a verbatim official record of witness examinations. In addition, the intention is that the parties litigating before the NCC can themselves exert a great deal of influence on the course of the proceedings.
A principal goal for the NCC is to operate on a cost-neutral basis. Although the court registry fee will be somewhat higher than in Dutch national courts, litigating before the NCC is likely to be (much) less costly than arbitration and similar proceedings in other countries. In any event, it is clear that the NCC offers a very attractive possibility for parties who are involved, or may become involved, in an international trade dispute. In terms of dispute resolution, the NCC is set to raise the Netherlands’ profile.
On 24 August 2021, the Dutch competition authority (ACM) imposed an order subject to a penalty on Apple Inc. and …