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Contracting with a Dutch business means taking a few decisions up front: which law governs the contract, which court or arbitrator decides disputes, whether the Vienna Sales Convention (CISG) applies, whose general terms apply and who may sign for the Dutch party. Getting these right in the contract prevents many cross-border disputes; leaving them open means the Rome I Regulation and the CISG decide for you.
This page is the checklist for foreign companies that buy from, sell to or work with a Dutch counterparty, and want an international contract drafted or reviewed under Dutch law. Each point links to a page that goes into more detail. Country-specific points are covered for contracts between Dutch and US companies and contracts between Dutch and UK companies.
1. Which law should govern your contract with a Dutch business?
Choose the governing law expressly in the contract. Without a choice, the Rome I Regulation decides: a sale of goods is governed by the law of the seller’s habitual residence, a services contract by that of the service provider, and a distribution or franchise contract by that of the distributor or franchisee (Articles 3(1) and 4(1)(a), (b), (e) and (f)).
For a foreign seller, that default often points to its own law; for a foreign buyer of Dutch goods or services, to Dutch law. Either way, the choice affects how the contract is read. A Dutch court interprets a contract by asking what the parties could reasonably expect from each other in the circumstances, not only by its wording (HR 13 March 1981, ECLI:NL:HR:1981:AG4158, Haviltex). And a deadline agreed for performance, as a rule, puts the debtor in default when it passes, unless the deadline has a different purpose (Article 6:83(a) Dutch Civil Code). Read more on choosing Dutch law in international contracts.
Why include a choice of court or arbitration?
A choice of law says which rules apply, not who decides. If you agree that the courts of an EU Member State, for example the Amsterdam District Court, have jurisdiction, that choice is in principle exclusive and binding whatever the domicile of the parties, unless it is null and void under the law of that Member State. It must be in writing or evidenced in writing (electronic communication that provides a durable record counts), or in a form that accords with the parties’ established practices or a widely known usage in international trade (Brussels I bis Regulation, Article 25(1)-(2)). More on Dutch jurisdiction in international disputes.
2. Does the Vienna Sales Convention (CISG) apply to your contract?
Often yes, if you buy or sell goods. The CISG applies to sales of goods between parties whose places of business are in different Contracting States, or where the conflict rules lead to the law of a Contracting State (Article 1(1) CISG). The Netherlands is a Contracting State, so choosing Dutch law usually means choosing the CISG for such sales.
The CISG does not cover sales of goods bought for personal, family or household use, unless the seller neither knew nor ought to have known of that use (Article 2(a)), and it does not deal with the validity of the contract or the transfer of ownership (Article 4); Dutch law (or the other applicable law) fills those gaps. Two rules matter in practice: a buyer must give notice of non-conformity within a reasonable time and at the latest two years after delivery, unless a longer guarantee period applies (Article 39), and damages are limited to what the party in breach foresaw or ought to have foreseen at the time of contracting (Article 74).
You can exclude the CISG, in whole or in part (Article 6). Do it expressly, for example: “The United Nations Convention on Contracts for the International Sale of Goods (CISG) does not apply.” A bare choice of “Dutch law” does not exclude it. More on our page about the CISG and on excluding the CISG in general terms and conditions.
3. Which language traps should you avoid?
Contracting in English with a Dutch party is common and lawful, but English legal terms do not automatically carry their English meaning under Dutch law. Terms such as “warranty”, “indemnity”, “consequential loss” or “best endeavours” as a rule have a meaning developed in English case law; a Dutch court reads the contract under Dutch law. Define such terms in the contract.
If the contract exists in two languages, say which version prevails, and make sure the prevailing version is one both parties understand. Background in our pages on English terms and conditions under Dutch law and on Dutch civil law compared with English contract law.
4. Who may sign for the Dutch company?
Check that the person who signs can bind the Dutch company. The board of a Dutch BV and each director individually can represent it, unless the articles of association reserve that authority to particular directors or require joint signature (Article 2:240(1)-(2) Dutch Civil Code). Others, such as sales or purchasing managers, need a power of attorney.
Request an extract from the Dutch commercial register (KvK) before signing an important contract. If the signatory lacked authority, the company is bound only if it ratifies the contract (Article 3:69) or if you reasonably relied on an appearance of authority that the company created or that falls within its risk (Article 3:61(2)). See unauthorised conclusion of a contract under Dutch law.
5. What should your offer and contract contain?
A contract under Dutch law is formed by offer and acceptance (Article 6:217(1) Dutch Civil Code), and a sale under the CISG need not be in writing, unless a party has its place of business in a state that made a declaration under Article 96 (Article 11 CISG). An accepted quotation or order confirmation can therefore already be the contract, so draft it as one.
- the exact product or service, quantity and specifications;
- price, currency and payment terms;
- delivery date, place of delivery and the Incoterms® rule, if you use one;
- a reference to your general terms, with the text attached;
- governing law, CISG yes or no, and the competent court or arbitration.
For long-term cooperation, such as distribution, agency or supply, a separate framework contract is usually wise, covering exclusivity, minimum volumes, liability, termination and what happens to stock and customers at the end.
6. How do you arrange delivery, costs and risk?
Agree who arranges transport and insurance and when the risk passes, usually by naming an Incoterms® rule of the International Chamber of Commerce (ICC) with a named place and the edition, for example “FCA Rotterdam, Incoterms® 2020”. Incoterms apply only if the contract incorporates them.
Without such an agreement, the default rules of the applicable law decide, which for a sale of goods is often the CISG. Incoterms do not deal with the price or the transfer of ownership; agree those separately, for example with a retention of title clause. More on Incoterms in general terms and conditions under Dutch law.
7. Will your general terms apply to the Dutch party?
Only if they become part of the contract. Between a foreign and a Dutch business, the special Dutch rules on general terms do not apply (Article 6:247(2)-(3) Dutch Civil Code), so the question is whether your terms were incorporated by offer and acceptance. In a CISG sale, the Convention decides that question (HR 28 January 2005, ECLI:NL:HR:2005:AR4837).
Refer to your terms in your offer and attach them. If both parties refer to their own terms, Dutch law gives priority to the first reference unless the other party expressly rejects those terms (Article 6:225(3)), while under the CISG a reply with materially different terms is a counter-offer (Article 19 CISG). More on when general terms and conditions apply and the battle of forms under Dutch law.
8. Who decides disputes about your contract?
Choose one route and write it down: a Dutch or foreign court, arbitration, or first negotiation or mediation with a deadline before either. Mixed or vague clauses (“courts or arbitration”) lead to a fight about the forum before the real dispute starts.
If you choose the Dutch courts, you can also agree to litigate in English before the Netherlands Commercial Court (NCC) of the Amsterdam District Court and Court of Appeal. That requires an international dispute, an express written agreement, and jurisdiction of the Amsterdam court; it is not available for cases within the cantonal court’s jurisdiction (Article 32a(1) Dutch Code of Civil Procedure). Arbitration, for example under the rules of the Netherlands Arbitration Institute (NAI), is an alternative when you need an award that can be enforced in a country outside the EU, as arbitral awards are recognised under the 1958 New York Convention in many countries.
When should you have an international contract reviewed by a Dutch lawyer?
Have the contract reviewed before you sign a framework or distribution agreement with a Dutch party, before you send your general terms to Dutch customers for the first time, and whenever the other side proposes its own law, forum or terms. Those are the moments when a clause can still be changed easily.
MAAK Advocaten, a Dutch law firm in Amsterdam, drafts and reviews international contracts for foreign companies dealing with Dutch counterparties, and acts in disputes before the Dutch courts, the NCC and in arbitration, in first instance and on appeal. Read more about our work as a cross-border contracts lawyer in the Netherlands.
Frequently asked questions about international contracting with Dutch businesses
What happens if my contract with a Dutch company has no choice of law?
Then the Rome I Regulation decides. A sale of goods is governed by the law of the seller’s habitual residence, a services contract by that of the service provider, and a distribution contract by that of the distributor (Article 4(1) Rome I). For sales of goods, the CISG may also apply.
Does the CISG apply if we choose Dutch law?
Usually yes, for a sale of goods between parties in different Contracting States, because the CISG is part of Dutch law. If you do not want it, exclude it expressly in the contract or your general terms (Article 6 CISG).
Can I sign a contract in English with a Dutch company?
Yes. Dutch law sets no language requirement for contracts between businesses. Make sure both parties understand the text, define English legal terms, and state which version prevails if there are translations.
Do my general terms apply to a Dutch customer?
Only if they became part of the contract, usually by a reference in your offer with the text attached. Between a foreign and a Dutch business, the Dutch rules on general terms in Articles 6:231-6:247 Dutch Civil Code as a rule do not apply (Article 6:247(2)-(3)).
Can we litigate in English in the Netherlands?
Yes, before the Netherlands Commercial Court in Amsterdam, if the dispute is international and the parties have expressly agreed in writing to NCC proceedings (Article 32a Dutch Code of Civil Procedure). Arbitration in English is also possible.
Primary sources
Dutch statutes are only officially available in Dutch, on wetten.overheid.nl. Judgments can be found on rechtspraak.nl by their ECLI number.
- Dutch Civil Code (Burgerlijk Wetboek): Article 2:240, Article 3:61, Article 6:83, Article 6:217, Article 6:225 and Article 6:247
- Dutch Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering): Article 32a
- United Nations Convention on Contracts for the International Sale of Goods (CISG): Article 1, Article 2, Article 4, Article 6, Article 11, Article 19, Article 39 and Article 74
- Rome I Regulation (Regulation (EC) No 593/2008): Articles 3 and 4
- Brussels I bis Regulation (Regulation (EU) No 1215/2012): Article 25
- Hoge Raad 13 March 1981, ECLI:NL:HR:1981:AG4158 (Haviltex)
- Hoge Raad 28 January 2005, ECLI:NL:HR:2005:AR4837
