Netherlands Commercial Court's makes First Asset Preservation Order

Jane Lambert 

The Netherlands Commercial Court is an English-speaking division of the Dutch courts sitting in Amsterdam.   I first mentioned the proposal to set it up in An English Speaking Commercial Court in the Netherlands which appeared in NIPC News on 28 Jan 2017.  It came into being very soon afterwards as I noted in The Netherlands Commercial Court - an English Speaking Court in Amsterdam.  I have been following it ever since.

Earlier in the year, the Court announced that it had made its "first pre-judgment attachment" (NCC News Update No 19).  According to the News Update, it is an interlocutory remedy to enable an intending claimant to secure assets belonging to the intended defendant against which he or she hopes to execute judgment. It sounds very like an English freezing injunction under CPR 25.1 (1) (f).  

According to NCC and Pre-judgment Attachments ("the guidance"), there are two routes by which an order for the securing of an intended defendant's assets may be obtained

"(a)  The creditor submits an application to the court in summary proceedings requesting leave for a pre-judgment attachment" 

 or

"(b) The creditor submits a European form to the court in summary proceedings requesting an European Account Preservation Order (EAPO; EU Regulation No. 655/2014)"

An application for pre-judgment attachment must be made by a Dutch lawyer.  The relevant assets must be in the Netherlands or the intended defendant must be domiciled in that jurisdiction.  The guidance states that "the claim must not be without merit".  It is not clear whether that means a triable issue as in American Cyanamid Co (No 1) v Ethicon Ltd. [1975] AC 396, [1977] FSR 593, [1975] 1 All ER 504, [1975] 2 WLR 316, [1975] UKHL 1, a good prima facie case or something more.  The application is usually made without notice and security is not usually required from the intending claimant.   The application is determined within 24 hours.  An action must be brought within the time specified by the court which is usually 14 days,

An application for an EAPO must be made by a creditor domiciled in an EU member state against an intended defendant domiciled outside the Netherlands in an action in the Dutch courts,  The applicant must provide security and he or she must be likely to succeed in the claim.   Again, the application is made without notice. An action must be brought within 14 days or such other time specified by the court.

Applications to discharge these orders can be made to the Netherlands Commercial Court.

The volume of work done by the Netherlands Commercial Court does not begin to compare with that of the Business and Property Courts of England and Wales but it appears to be growing.   New judges with experience of litigation in English speaking common law countries such as ​Neil Purcell and Marieke Witkamp have been appointed.   Litigation in Amsterdam tends to be considerably less expensive than in London and the Brussels Recast Regulation continues to apply to the Netherlands.

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