What the Three European ICCs Have to Offer
The ICCs of Germany, France, and the Netherlands all use their own local, civil law based procedural rules. France and the Netherlands have both used the flexibility that their standard rules of procedure offer to come up with their own set of rules for their international commercial courts. France has its own protocols, one for each instance of the international court, and the Netherlands has its NCC rules that apply to both district level and appeal. In these special procedural rules, both countries have implemented best practices from international arbitration and the common law systems into their international court procedures. The below sets out the main innovations to the standard civil law procedures:
- Both France and the Netherlands recognize the importance of safeguarding fast and efficient proceedings. In an early phase of the procedures, case management conferences will be organized to discuss preliminary matters, motions, fact-finding, and a timetable. With their focus on case management, both countries make tailor-made proceedings possible, similar to what is done in international arbitration. In the Netherlands, this starts even in an earlier phase than in arbitration, because a judge will already be designated at the time the first submission is served, whereas an arbitral tribunal still needs to be appointed at that stage.
- France and the Netherlands have both adapted their evidentiary practices to focus more on oral submissions and evidence than is typically the case in civil law procedures, in which written pleadings form the core of a case. Written witness statements may be submitted in advance of oral witness testimony. Both countries have also expressly stipulated in their rules the possibility of cross-examination of witnesses and experts by counsel. While it is possible for counsel in standard proceedings to ask questions to a witness or an expert, cross-examination generally does not happen in France or the Netherlands in the adversarial way as in common law countries. In both the NCC rules and the French protocols, counsel, however, appear to be given more room to conduct cross-examination as they want, under the supervision of the court. The NCC rules further acknowledge that parties can enter into an evidentiary agreement in which they can customize their proceedings from an evidentiary perspective and can deviate from the statutory rules of evidence.
- Both France and the Netherlands have included provisions on obtaining evidence from the other party or a third party and thereby acknowledge the importance of disclosure requests to parties. While there will be no room for fishing expeditions, it is expected that both courts may be more open to disclosure of document requests than is usually the case in civil law procedures. Both courts may also fall back on the International Bar Association Rules on the Taking of Evidence in International Arbitration.
When it comes to the question of how English the European ICCs are, it should be noted that in Germany and France, only the oral part of the hearings can be done in English. Although exhibits in English don’t need to be translated, written pleadings must still be submitted in French and German. Most importantly, the judgments and any court orders will be rendered in the local language. An official translation of the judgment in English can be provided to the parties upon request. This means that there could be two versions of one judgment, which could lead to conflicts in interpretation, but the official judgment in either French or German will prevail.
In the NCC, every part of the proceedings is done in English, including both the oral and the written submissions. This also includes the judgment, which is rendered in English. The NCC is therefore the only truly English speaking court on the continent.
The Future of ICCs
Considering what is published about these three courts, it is clear that both the French and Dutch ICCs are open for business. Not much is published about the German ICCs. The caseload of the French and Dutch courts are modest at this time, but this can be explained by the fact that it is only since the start date of these ICCs that forum selection clauses can be included in international commercial contracts to designate the Paris Commercial Court or the NCC as forum of choice. It can be expected, therefore, that the caseload of these courts will increase over time.
The question is frequently posed whether ICCs can really compete with international arbitration. There are advantages to both forms of dispute resolution, and it will depend on what the parties in question are looking for. The caseloads of Paris and Amsterdam in any case show that international commercial courts complement international arbitration by offering summary proceedings, which is not always a viable option in arbitration, and by offering an English speaking forum in case an award of an international arbitration tribunal is being challenged.
The establishment of the European ICCs is a promising addition to the existing international dispute resolution scene. The NCC in particular, being the only real English-speaking court of the three European international commercial courts, is very well equipped to become a true player in the field of international dispute resolution. So be aware of these European ICCs and consider them as a forum for your trans-atlantic disputes.
