Requirements upon Agreements in Favour of the NCC and the German Chambers – Clashing with the Brussels Ibis Regulation?

Abstract

markdownabstractIn recent years, the Netherlands and Germany have added \nthemselves to the ever-growing number of countries opting \nfor the creation of an international commercial court. The \nNetherlands Commercial Court (NCC) and the German \nChambers for International Commercial Disputes (Kammern \nfur internationale Handelssachen, KfiH) will conduct proceedings \nentirely in English and follow their own, diverging \nrules of civil procedure. Aspiring to become the future venues \nof choice in international commercial disputes, the NCC \nlaw and the legislative proposal for the establishment of the \nKfiH allow parties to agree on their jurisdiction and entail \ndetailed provisions regulating such agreements. In particular, \nthe NCC requires the parties’ express and in writing \nagreement to litigate before it. In a similar vein, the KfiH \nlegislative proposal requires in some instances an express \nand in writing agreement. Although such strict formal \nrequirements are justified by the need to safeguard the procedural \nrights of weaker parties such as small enterprises \nand protect them from the peculiarities of the NCC and the \nKfiH, this article questions their compliance with the requirements \nupon choice of court agreements under Article 25 (1) \nBrussels Ibis Regulation. By qualifying agreements in favour \nof the NCC and the KfiH first as functional jurisdiction \nagreements and then as procedural or court language \nagreements this article concludes that the formal requirements \nset by the NCC law and the KfiH proposal undermine \nthe effectiveness of the Brussels Ibis Regulation, complicate \nthe establishment of these courts’ jurisdiction and may thus \nthreaten their attractiveness as future litigation destinations.