A fully English-speaking court in Amsterdam
There’s something quite nerve-wracking about making an appointment with a judge. Whether it’s the thought of the gavel’s slam on cratered wood or the (supposed) steely nature of someone who sits behind the bench, it’s hard not to think of these dispensers of justice as somewhat terrifying. So, it’s a welcome surprise that spending time in the company of Netherlands Commercial Court of Appeal President Duco Oranje is a true pleasure – whether discussing the finer points of international business disputes or the reasons he loves living and working in Amsterdam.
Oranje is meeting with I amsterdam to talk about the Netherlands Commercial Court (NCC), Amsterdam’s fully English-speaking court to resolve businesses disputes. It is a boon for international companies often operating across countries and different languages, and – apart from London’s - the only European commercial court that offers everything in English, including documentation, proceedings, pleadings and judgments.
Why international businesses feel at home in the Dutch capital
Setting up and establishing a business in the Amsterdam Area is simple for international companies. As well as being strategically placed in Europe and offering a collaborative and open business ecosystem, there’s an abundance of accelerators, incubators and expert knowledge institutions, a wealth of talent. It also helps that 90% of Amsterdam residents speak English, one of the reasons why the Dutch capital regularly tops the EF English Proficiency Index. Now, the Netherlands Commercial Court is another advantage for international businesses operating in the region.
“Amsterdam has a very accepting business community where every company – both international and local – has its own identity and spirit. And that’s special as it’s not always the case in other parts of the world. It is also where international business is concentrated in the Netherlands and so was a natural home for the NCC,” Oranje explains. “Many Dutch businesses, including SMEs, conduct their business in English. So, all the correspondence, agreements and legal stuff in the court are in English, which allows firms to save time and costs.”
What makes the Netherlands Commercial Court unique?
The NCC is unique in that it is the first and only court in the European Union where the proceedings are conducted entirely in English, Oranje says. “That is unique for a non-English speaking country,” he explains. “There are a few other commercial courts in Europe that allow English to some extent, such as in Frankfurt and Paris, but the NCC is the only court where proceedings are conducted entirely in English, including the judgement.”
As well as its English-speaking credentials, the judges which have been selected for the NCC are all experienced in dealing with large and complex international commercial cases. “For the parties it is good to know that their case will be handled by three judges both in the first instance and in the appeal,” Oranje says. “All of our judges have extensive experience of international commercial matters.”
NCC proceedings aren’t automatically carried out under Dutch law, making it flexible to a company’s needs. “As a judge,” Oranje explains, “there are all sorts of international treaties that determine which law applies or the parties can agree on an applicable law. So, you could have a Brazilian company having proceedings against the Dutch company and having chosen Swiss law in their agreement.”
The NCC has also drafted a set of separate procedural rules to amend the normal procedures to make them even more beneficial for international businesses. “For instance,” Oranje explains, “we offer the possibility of hearing witnesses by video conferencing. We have rooms which are entirely digital. So, you could hear a witness in Sri Lanka, and we could have a lawyer doing part of his pleadings from Palermo. We offer all modern technologies. And the filing of documents is entirely digital, too. That’s all done through a separate digital portal which has been built separately for the NCC.” One thing that helps these processes run smoothly is the sessions take place in the NCC’s base - a state-of-the-art building at Amsterdam’s IJdock, completed in 2013, which is also home to the Court of Appeal.
Keeping costs low during litigation
One criticism that has been levelled at the NCC is that its court fees are higher than that of other commercial courts. But Oranje argues that the overall costs of litigation are considerably higher in other countries and capitals.
“Court fees are a small part of the total costs of litigation in international commercial cases, with the costs of the legal services, such as lawyers, much higher,” he explains. “The court fees are probably negligible. The real costs are the cost of the lawyers. Dutch proceedings are much simpler and more straightforward. Therefore, the lawyer costs are much, much lower. Lawyers in the Netherlands also generally charge much lower rates than other places, such as England.” In fact, a Dutch Council document created when planning for the NCC estimated that a procedure in London would cost five times as much as one in Amsterdam.
To make sure it is operating as efficiently as possible, the NCC is constantly reviewing itself and conducting research with lawyers and the wider business community in the Amsterdam Area. “There was a lot of enthusiasm from everyone when we first spoke about setting up the court”, says Oranje, “and now lawyers who have used our services have given us positive feedback, telling us that everything was clear and well organised. Cases are coming in, and that takes time, but it’s been very promising.”
How Brexit and the coronavirus crisis is affecting the NCC
Oranje thinks that the uncertainty caused by the coronavirus crisis might mean the court will hear fewer cases in the upcoming months, as businesses look to settle disputes during an uncertain economic period. “I think that’s a case across the world. And, of course, people can’t travel easily” he says.
Of course, another topic that is unavoidable during our conversation is Brexit. The discussions around the creation of the court happened long before Brexit happened, but now it has Oranje thinks it will influence the UK’s reputation as a capital of legal services in Europe. “I think there will be a shift to other international business courts in Europe - it can’t not have an influence. And a judgement from a UK court will no longer be enforceable after the transition period if they don’t make new arrangements. And that’s a strange situation.”
An institution that is already making history
One promising development is that the NCC is already making history, after earlier this year passing judgement on a landmark case in which one party argued it didn’t have to comply with an agreement due to the effects of the coronavirus. “It’s great to be involved in making a historic judgement like that,” says Oranje.
Before he became a judge, Oranje worked as a lawyer for 35 or so years, and so he likes to think that he treats those that come before his bench fairly, having been in their position for many years. Like many Amsterdammers, he is also open and easy to get on with, and you can’t help but feel that his approach perfectly exemplifies the court he represents: one that’s just, clear and authoritative. It’s no wonder that the NCC already looks like its on the right path to help international businesses excel in the Amsterdam Area.
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