Thu, Jun 22, 2017

International Trade and Commercial Disputes Will Soon be Settled by the Netherlands Commercial Court

Doing business is becoming increasingly international. As a result, cases-and their related challenges-are more cross-border in character.

English is the leading language of communication, both in day-to-day contacts and contracts and will likely result in a growing demand for international jurisdiction in the English language and for (financial) experts that can assist with complex global cases. 

This not only involves alternative methods for dispute resolution, such as arbitration, but also commercial disputes settled at specialized courts in London, Dubai and Singapore. There is a clear tendency that large commercial disputes are notified to regular Dutch courts less often, rather than to “commercial courts” abroad.

As it now appears, the Netherlands is also claiming its position in the market of international jurisdiction and steering towards establishing a new international courtroom at the Amsterdam Court of Appeal under the name of Netherlands Commercial Court (NCC) and Netherlands Commercial Court of Appeal (NCCA) as of 1 January 2018.

In its first round of consultation on 1 February 2017, the Dutch Bar Association (De Nederlandse Orde van Advocaten) stated the following as one of the key points for such a courtroom: “The possibility of a tailor-made process in which parties may choose the provisioning of evidence according to internationally accepted rules regarding provisioning of evidence as laid down by the IBA” (International Bar Association).

If the Netherlands Commercial Court will be applying the IBA rules for the provisioning of evidence that differ from the existing method of provisioning evidence, the need arises to bring in (financial) experts with extensive experience of these rules.

This particularly relates to the following differences:

A more comprehensive exchange of documents
Similar to Anglo-Saxon countries, but less far-fetching and new in relation to the current situation, the exchange of information is wider and more extensive. It is important to start collecting this information early and tailor to the question being asked. It is important to be organized to prevent surprises at a later stage.

Oral defense of expert evidence
In current practice, the court usually orders an expert’s opinion. Under the IBA rules, both parties usually have an expert who submits a report, and who is subsequently examined by the counterparty (‘cross examination’). Although this is possible in the Dutch situation, it is rare that the expert is subjected to in-depth questioning by the counterparty about the submitted report. This also calls for an early involvement of a (financial) expert to allow for project involvement from start to finish, not only in delivering the opinion in writing, but also in the oral defense of his/her opinion. To avoid any surprises in this respect, the contribution of the (financial) expert is valuable, e.g. in requests for information from the counterparty or in contributing to the process strategy.

Given this complexity of conducting international business, it is more important than ever to bring in a (financial) expert with international expertise and an in-depth knowledge of this new method of the provisioning of evidence at an early stage.

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