The Netherlands Arbitration Institute (NAI) and the Netherlands Commercial Court (NCC) recently pub-lished a joint model clause combining NAI Arbitration and NCC court litigation before, during or after the arbitration.
The NCC was created on 1 January 2019 and provides for English-language proceedings in three cham-bers: the NCC Court in Summary Proceedings, the NCC District Court and the NCC Court of Appeal. The NCC is based in Amsterdam (with the NCC Courts being specialized Chambers for International Commer-cial Matters of the Amsterdam District Court and the Amsterdam Court of Appeal). The NCC has been fol-lowing the example of existing foreign commercial courts in New York, Delaware, London, Dubai and Sin-gapore and aims to answer the need of the international business community and international counsel for specialized, flexible and fast court proceedings in English, against moderate costs.
Moreover, the NCC has been designed to co-exist with and facilitate the existing international arbitration framework in the Netherlands. For this reason, the NCC and the NAI jointly published a model clause providing for NAI Arbitration and designating the NCC District Court, the NCC Court in Summary Pro-ceedings and the NCC Court of Appeal as the competent chamber for any court litigation needed before, during or after the arbitral proceedings. The NAI-NCC model clause reads as follows:
"All disputes arising in connection with the present agreement, or further agreements resulting therefrom, shall be settled in accordance with the Arbitration Rules of the Netherlands Arbitration Institute (NAI). The place of arbitration shall be Amsterdam (the Netherlands). The proceedings shall be conducted in English. Any court proceedings in the Netherlands before, during or after the arbitration will - to the extent allowed by law - exclusively be dealt with by the Amsterdam District Court or the Amsterdam Court of Appeal, whichever has jurisdiction, following proceedings in English before the Chambers for International Com-mercial Matters (Netherlands Commercial Court, which consists of the NCC District Court, the NCC Court in Summary Proceedings and the NCC Court of Appeal). The NCC Rules of Procedure (see www.ncc.gov.nl) apply to these proceedings. This clause is not intended to exclude Supreme Court appeal."
One of the great benefits of this joint model clause for international arbitrations is that it provides for the possibility of setting aside proceedings in English with the NCC Court of Appeal in Amsterdam. It is im-portant to note that – even if parties would not opt for NAI arbitration – it is necessary to indeed provide for Amsterdam as the place of arbitration (although hearings may be held anywhere in the world) and for parties to expressly agree to proceedings in English before the NCC in order to be able to bring proceedings with the NCC. The model clause will further enable parties to request for interim and protective measures or other measures in aid of the arbitration (for example the determination of the number of arbitrators, the appointment of an arbitrator or the challenge of an arbitrator) in court proceedings in English.
Therefore, this joint model clause is a next step in the interaction between arbitrations seated in the Nether-lands and the NCC and it shows that for international disputes the NCC is not only an option next to arbi-tration but that it could also be complementary to arbitration. The possibility to choose for English-language proceedings in relation to international arbitrations reinforces the benefits of Amsterdam as an attrac-tive seat of arbitration.
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