The choice of forum clause (forumkeuzebeding) under Dutch law
A choice of forum clause, forumkeuzebeding in Dutch, is a contractual provision designating the court or courts that will have jurisdiction over disputes arising from the contract. In domestic Dutch contracts, Article 108 of the Dutch Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering) governs such clauses; in international contracts between EU-domiciled parties, Article 25 of the Brussels I Recast Regulation applies. Selecting the right forum, and drafting the clause correctly, has significant practical consequences for where and how a dispute can be litigated, and for the enforceability of any resulting judgment.
What rules govern domestic choice of forum under Dutch procedural law?
Under Article 108 of the Dutch Code of Civil Procedure, parties to a contract governed by Dutch law may designate any Dutch district court as the competent court for their disputes, overriding the default rules on jurisdiction that would otherwise apply.
The default rule under Dutch civil procedure is that the competent court is the court of the defendant's domicile. A choice of forum clause allows the parties to displace this default by designating a specific court, most commonly the District Court of Amsterdam or Rotterdam for commercial disputes, regardless of where either party is domiciled. The clause may designate Dutch courts generally or a specific court by name.
A forum selection clause must be in writing to satisfy Article 108 Rv. However, this is broadly construed: a clause in standard terms incorporated by reference satisfies the requirement, provided the standard terms were adequately made available to the other party. The clause is binding on both parties from the moment of contract formation and can be invoked by either party when proceedings are commenced.
How does Article 25 of the Brussels I Recast Regulation apply to international contracts?
For contracts between parties domiciled in EU member states, the choice of forum clause is governed by Article 25 of the Brussels I Recast Regulation (EU Regulation 1215/2012), which gives the designated EU court exclusive jurisdiction unless the parties expressly agreed otherwise, and requires the agreement to be in writing, evidenced in writing, or in a form consistent with established practices between the parties or trade usages.
The Brussels I Recast Regulation has direct effect throughout the EU and overrides national jurisdictional rules. A choice of forum clause satisfying Article 25 confers exclusive jurisdiction on the designated court: other EU courts before which proceedings are commenced must decline jurisdiction in favour of the designated court. The enforcement of judgments from the chosen court throughout the EU is automatic, without any exequatur procedure, making the choice of an EU court for dispute resolution a practical advantage for commercial parties.
The writing requirement under Article 25 Brussels I Recast is satisfied by: a written agreement signed by both parties; an agreement evidenced in writing (including email or electronic confirmation); an agreement in a form consistent with a course of dealing between the parties; or an agreement consistent with international trade usages that the parties knew or ought to have known. A choice of forum clause in standard terms is effective if the standard terms were incorporated into the contract in accordance with the applicable rules, a point that must be checked carefully, particularly in cross-border transactions.
What is the difference between exclusive and non-exclusive jurisdiction clauses?
A choice of forum clause may be exclusive, restricting both parties to the designated court, or non-exclusive, preserving each party's right to sue in any competent court; in finance transactions, asymmetric clauses grant one party (typically the lender) the right to sue anywhere while binding the other party to the designated forum.
Under Article 25 of Brussels I Recast, a forum selection clause is presumed exclusive unless the parties expressly agreed otherwise. A non-exclusive clause must therefore expressly state that it does not exclude other competent courts. The practical consequence of an exclusive clause is that any court seised in breach of it must stay or dismiss the proceedings; a non-exclusive clause does not prevent the chosen court from being used but does not deprive other courts of jurisdiction.
Asymmetric jurisdiction clauses are widely used in loan agreements, facility agreements, and financial guarantees: they allow the lender to sue the borrower in the chosen court or in any other court with jurisdiction over the borrower's assets or domicile, while the borrower can only sue in the contractually designated forum. Dutch courts recognise and enforce asymmetric jurisdiction clauses in commercial (B2B) contracts, treating them as valid under Article 108 Rv and Article 25 Brussels I Recast. They require precise drafting: the clause must clearly identify which party benefits from the extended choice and the scope of disputes to which each part of the clause applies.
When should parties designate the Netherlands Commercial Court in their forum selection clause?
The Netherlands Commercial Court (NCC) enables parties to designate English-language proceedings before the Amsterdam District Court or Amsterdam Court of Appeal: NCC judgments are EU-enforceable under Brussels I Recast and are an increasingly popular alternative to arbitration for international commercial contracts governed by Dutch law.
For parties to an international contract who want proceedings conducted in English before a state court, with the enforceability advantages of a court judgment across the EU, the NCC is a compelling option. A choice of forum clause designating the NCC should refer to the Amsterdam District Court (NCC chamber) for first instance and the Amsterdam Court of Appeal (NCCCA chamber) for appeal. Both chambers accept filings and conduct all proceedings in English, applying Dutch substantive law unless the parties have chosen otherwise.
The NCC differs from arbitration in several material respects: NCC judgments are publicly available; they are subject to the ordinary Dutch appeal process (no agreement required to limit appeal rights); and they benefit from automatic EU-wide recognition without a separate enforcement step. In M&A transactions where the parties want litigation rather than arbitration, the NCC combined with an exclusive choice of forum clause provides a reliable and enforceable dispute resolution mechanism. Consulting a contract lawyer in the Netherlands when drafting forum selection clauses ensures that the chosen language precisely achieves the intended jurisdictional effect under both Dutch procedural law and applicable EU regulations.