International Jurisdiction of Courts in the Netherlands
The Netherlands offer a broad range of possibilities for foreign parties to resolve disputes in the Dutch jurisdiction. A Dutch attorney can advise on the possibilities. If a party already has obliged itself towards his counterpart to file the claim at a forum of another country then the Dutch Court has to turn down an international lawsuit, brought to it by one of the parties. The Dutch Court will then decide that the mutually appointed foreign court is the only forum with jurisdiction over this matter.
Access to Dutch Courts
There are exceptions to this rule, e.g. in no lawsuit is involved, and the dispute in essence could be solved through a mutual agreement between parties, then the Dutch Court will, despite of the chosen forum clause, accept jurisdiction, provided of course this complies with other legal requirements for admitting international lawsuits to Dutch jurisdiction.Principal Rule Netherlands Jurisdiction regarding a Choice of Forum
Choose Netherlands to settle dispute
Article 8 of the Code of Civil Procedure arranges the choice of forum . The freedom of choice is limited to disputes arisen from legal relationships that only affect the interests of the involved parties themselves. This is the case in civil and commercial matters as well as in family matters to the extent that they are related to a dispute over property rights. As a rule it concerns rights of actions that have to be initiated by a Writ of Summons. Disputes over such matters are at the free disposal of parties, so they are allowed to choose by mutual agreement a court or judge to settle them. The parties may make a forum clause that appoints a Dutch court or a foreign court or even an arbitrator.
In case parties have chosen a foreign court or arbitrator to consider their case, the Dutch court will no longer admit the related legal claim, unless the parties waive theur prevoius choice. It recognizes the earlier made choice of parties and, as a result, it will proclaim that it has no longer any jurisdiction, even when it would be competent to give a judgment according to a European Regulation, a Treaty or the international private law of the Netherlands. An exception has to be made for disputes concerning an employment agreement or a consumer agreement falling within the scope of Article 6 of the Code of Civil Procedure where the choice of forum was made prior to the moment on which the dispute came to existence, for instance because of a forum clause in the employment agreement itself or in the general conditions applying to the consumer contract.
Choice of Law – Dutch Law not a bad choice
If a contract appoints a Dutch court, the Dutch court will accept this choice and therefore admit the case to be settled providing the dispute concerns a matter at the free disposal of parties. Whether or not the Dutch court has jurisdiction according to European Regulations, Treaties or the international private law of the Netherlands, is no longer important. Nevertheless, when there is no reasonable interest to choose for a Dutch court, it may deny to admit the action.
Forum Choice the Netherlands
To be recognized as a valid forum choice, it is necessary that the forum clause is put down in a written agreement between parties. A Dutch Attorney can verify the contract clause. This agreement may be closed prior to the moment on which the dispute has come to existence or afterwards. It may be one of the many clauses in the existing principal agreement or the applicable general conditions or it may form an independent agreement on its own. In any event, the forum clause shall be regarded and evaluated as a separate agreement. The seized Dutch court is competent to assess the validity of the principal agreement, including its general conditions, of which the forum clause forms a part or to which it is related.
Implicit Choice of Dutch Court
When Articles 2 up to and including 8 of the Code of Civil Procedure indicate that a Dutch court has no jurisdiction, then it nevertheless has jurisdiction if it concerns a legal relationship that only affects the interests of the involved parties themselves and the defendant or a party with an interest in the legal proceedings has appeared in court, not exclusively or with the intention to dispute the jurisdiction of the Dutch court, unless there is no reasonable interest to conclude that the Dutch court has jurisdiction (Article 9, paragraph 1, Code of Civil Procedure).
Safety-net provision (‘forum necessitatis’) in Dutch Code
When Articles 2 up to and including 8 of the Code of Civil Procedure indicate that a Dutch court has no jurisdiction, then it nevertheless has jurisdiction if it appears to be impossible to start a civil case outside the Netherlands (negative jurisdiction conflict) or the plaintiff cannot be expected to start a procedure in a State that would have jurisdiction, for instance because of a war, on condition that the case is sufficiently connected with the Netherlands (Article 9, paragraph 2, Code of Civil Procedure). This last rule only applies to legal proceedings which are to be initiated by a writ of summons.
Pending proceedings and stay of legal proceedings in the Netherlands
Article 12 of the Code of Civil Procedure stipulates that in the event the same parties have filed the same right of actions simultaneously for the courts of two (or more) different States. If a civil action is first brought before a foreign court (1)which proceedings might result in a judgment that could be recognized and (2) where appropriate, enforced in the Netherlands, then the Dutch court and (3)if it concerns the same cause of action between the same parties, may stay its proceedings until the first seised foreign court has given its judgment. If this judgement indeed can be recognized and, where appropriate, enforced in the Netherlands, then the Dutch court shall decline jurisdiction.
A judgment of the Dutch Court confirming of denying jurisdisction is subject to appeal. Feel free to discuss the international jurisdisction of the Dutch Courts with a Dutch Attorney.