Contracting with Dutch parties: common mistakes to avoid

Contracting with Dutch parties goes wrong in a small number of predictable ways, and almost all of them come from assuming that a contract drafted for another jurisdiction works unchanged in the Netherlands. Dutch contract law is codified in the Burgerlijk Wetboek, it gives judges an explicit power to set aside terms that would be unacceptable in the circumstances, and it contains default rules that apply whenever the contract is silent. The eight issues below are the ones that produce most of the disputes we see.

Interpretation: the contract is not only what it says

Dutch law reads a contract by asking what the parties could reasonably attribute to its provisions in the circumstances, and what they could reasonably expect of each other. This is the Haviltex standard, laid down by the Hoge Raad in 1981, and it is the starting point for every dispute about what a clause means. The literal wording matters, but it is evidence of the parties’ intentions rather than the whole of it.

The weight given to the text varies with the situation. In a negotiated commercial agreement between professional parties, each advised by lawyers, with a detailed structure and an entire agreement clause, the courts take the wording as the primary guide and require good reason to depart from it. In a short agreement between unequal parties, the surrounding circumstances carry far more weight. So the practical answer is not that Dutch courts are textual or purposive, but that the more professionally the contract was made, the more it will be read as written.

Two provisions then sit above the whole agreement. Article 6:248 lid 1 BW adds to the contract the consequences that follow from reasonableness and fairness, filling gaps the parties left. Article 6:248 lid 2 BW allows a court to disapply a term where reliance on it would be unacceptable according to standards of reasonableness and fairness. That second power is exercised sparingly, and the threshold word is unacceptable rather than unreasonable, but it exists and it has no direct equivalent in the systems most international contracts are drafted for.

A Dutch court can set aside a clause you negotiated and paid for. It will not do so because the clause is harsh, only because relying on it in the concrete circumstances would be unacceptable, and the party invoking that argument bears a heavy burden.

What follows for drafting is straightforward. Write down what you actually agreed, including the commercial purpose, because a recital explaining why a clause exists is the best defence against a later argument that enforcing it is unacceptable. Do not rely on unwritten understandings or on trade usage you have not recorded. And do not import doctrines that Dutch law does not use; a clause drafted around a foreign concept will be read by a Dutch judge through the Burgerlijk Wetboek. Our article on navigating Dutch contract law sets out the fundamentals.

Governing law, forum and the convention nobody excluded

A choice of law and a choice of forum are two separate clauses doing two different jobs, and a contract needs both. Within the EU, the applicable law of a commercial contract is determined by the Rome I Regulation, which respects a choice of law made by the parties and, in its absence, applies default connecting factors: the law of the seller’s habitual residence for a sale of goods, the law of the service provider for services. Jurisdiction is governed by the Brussels I bis Regulation, which upholds a choice of court agreement and otherwise points to the defendant’s domicile or the place of performance.

The trap that catches more international contracts than any other is the Vienna Sales Convention. The Netherlands is a party to the CISG, and it applies automatically to contracts for the sale of goods between businesses established in different contracting states. Choosing Dutch law does not exclude it; the CISG is part of Dutch law. If you wanted the Burgerlijk Wetboek, and in particular its rules on conformity, notification and remedies, you have to say that the applicability of the Vienna Sales Convention is excluded. Companies discover this when a claim is time-barred, or is not, under a regime they had not read.

Whether to exclude it is a commercial judgment rather than an obvious one. The CISG has no general terms and conditions doctrine and a different structure of remedies; the Burgerlijk Wetboek has the two-month notification rule for consumer sales and the complaint duty of article 6:89 BW for everything else. The point is that the choice should be conscious.

Where the case will actually be heard

A choice of court clause should name a specific court, not a country. The District Court of Amsterdam, of Rotterdam or of Oost-Brabant are different forums with different specialisations, and a clause saying only that the Dutch courts have jurisdiction leaves the internal allocation to the rules of the Wetboek van Burgerlijke Rechtsvordering.

For international parties the Netherlands Commercial Court, a chamber of the Amsterdam court, is often the better answer. It hears international commercial disputes in English, with judgments in English, and both parties must have agreed to it expressly and in writing. Its court fees are considerably higher than those of the ordinary courts, which is the trade-off for proceedings that do not have to run through translations.

Arbitration remains the alternative where confidentiality or enforcement outside the EU matters. An arbitration clause should name the institution and the rules, the seat and the language; the Netherlands Arbitration Institute is the usual domestic choice. Enforcement within the EU is straightforward for court judgments under Brussels I bis, and enforcement outside it depends on treaties, which is where the New York Convention gives arbitral awards a real advantage. Our articles on applicable law in international agreements and on the recognition and enforcement of foreign judgments work through the consequences.

General terms and conditions and the battle of forms

Almost every Dutch business contracts on its own algemene voorwaarden, and the rules governing them are peculiar to the Netherlands in ways that catch foreign counterparties repeatedly.

The first is the duty to make them available. Article 6:233 sub b BW combined with article 6:234 BW requires that the user gives the other party a reasonable opportunity to take note of the terms, in principle by handing them over or sending them before or at the time of contracting. A reference to a website is sufficient only in defined circumstances, principally where the contract was concluded electronically. Terms that were not properly provided can be annulled clause by clause, which usually means the very clause the user needs.

The second is the battle of forms, and Dutch law resolves it differently from most systems. Article 6:225 lid 3 BW applies a first shot rule: where offer and acceptance refer to different sets of general terms, the second reference has no effect unless the second party expressly rejects the first party’s terms. Expressly means expressly; a standard sentence in your own conditions saying that other terms are rejected is generally not enough. Our article on the battle of forms explains how to win it.

The third is content control. Articles 6:236 and 6:237 BW contain a black list of terms that are always unreasonably onerous and a grey list of terms presumed to be, but they apply in relation to consumers. Article 6:235 BW then excludes large companies from invoking the general control of article 6:233 sub a BW at all, while smaller businesses may in some circumstances rely on the reflex effect of the lists. So the same clause can be void against a consumer, vulnerable against a small business and perfectly enforceable against a multinational. See our guide to drafting general terms and conditions.

Payment terms, statutory interest and collection costs

Dutch law regulates payment terms between businesses more tightly than most jurisdictions, and the rules are mandatory rather than default.

Where nothing is agreed, article 6:119a BW makes payment due within thirty days of receipt of the invoice, after which statutory commercial interest runs automatically without a reminder. A longer term can be agreed, but not longer than sixty days unless the parties expressly agree otherwise and the longer term is not manifestly unfair to the creditor. Since 1 July 2022 there is a stricter rule for the most common cross-border scenario: a large company contracting with a small or medium-sized supplier may not agree a payment term longer than thirty days, and a longer term is converted to thirty days by operation of law. Where the debtor is a public authority, article 6:119b BW applies a thirty-day term.

The statutory commercial interest itself is the refinancing rate of the European Central Bank increased by eight percentage points. It is fixed twice a year and published by De Nederlandsche Bank, so a contract should refer to the statutory rate rather than repeat a figure that will be out of date within months. It is materially higher than the ordinary statutory interest that applies to non-commercial obligations, and it accrues without any notice of default being required.

Extrajudicial collection costs are recoverable under article 6:96 lid 2 sub c BW, calculated on a sliding scale set by decree. Between businesses the parties may agree a different arrangement; against consumers the scale is mandatory and a warning letter with a fourteen-day period is required first.

Between businesses, statutory commercial interest starts running by itself. You do not need to send a reminder, and a clause purporting to require one before interest accrues weakens your own position.

Currency deserves one line in the contract and rarely gets it. State that amounts are in euro, state whether they are exclusive of VAT, and state who bears bank charges on an international transfer. Retention of title, article 3:92 BW, is the other clause that suppliers regularly omit and then wish they had: it must be agreed in advance and, for goods that will be processed or resold, drafted with that in mind.

Consumers, and the smaller business that is treated a little like one

Selling to Dutch consumers brings a body of mandatory law that cannot be contracted out of, and a choice of foreign law does not remove it: under the Rome I Regulation a consumer keeps the protection of the mandatory rules of their own country of habitual residence where the trader directs its activities there.

For distance and off-premises contracts, article 6:230o BW gives the consumer fourteen days to withdraw without giving reasons. If the trader has not informed the consumer of that right, the period is extended by twelve months. The information duties in section 6.5.2B BW are extensive, and they include the total price inclusive of taxes, the identity and address of the trader, and the existence of the legal conformity guarantee.

Conformity is the other half. Article 7:17 BW requires the goods to correspond to what the consumer could reasonably expect, and for consumer sales the rules on digital content and updates were extended in 2022. Any commercial guarantee sits on top of those rights and may not present them as an extra benefit.

In business-to-business relationships the freedom is much wider, but not unlimited. Beyond the general terms regime described above, several sectors carry mandatory protection for the weaker party. The Wet franchise, in force since 1 January 2021, imposes pre-contractual information duties, a four-week standstill period, and consent requirements for changes to the formula; its transitional period for existing agreements ended on 1 January 2023. The commercial agency rules in articles 7:428 and following BW give the agent mandatory notice periods and, on termination, a potential goodwill payment under article 7:442 BW that cannot be excluded in advance. Distributors do not have that statutory protection, which is precisely why the distinction between agency and distribution has to be drawn deliberately. See our articles on the franchise agreement and the distribution agreement.

Liability clauses that actually hold

Dutch law does not prohibit limitations of liability. What it does is subject them to the same reasonableness control as any other term, and the case law on that control is well developed enough to predict.

The rule of thumb drawn from the case law of the Hoge Raad is that reliance on an exclusion is unacceptable where the damage was caused by intent or conscious recklessness on the part of the debtor itself or of members of its management. Note the standard: opzet of bewuste roekeloosheid, intent or conscious recklessness, rather than the gross negligence that foreign drafting usually reaches for. Ordinary negligence, even serious negligence, does not automatically defeat a clause; whether it does depends on the nature and gravity of the breach, the position of the parties, the extent of the damage, whether insurance was available, and whether the clause was negotiated.

The practical consequence is counter-intuitive: an aggressive clause is a weaker clause. A total exclusion of all liability in all circumstances invites a court to set it aside entirely, leaving the party with no protection at all, whereas a calibrated cap survives. Dutch courts do not usually rewrite a clause into something more moderate; they either apply it or they do not.

Three drafting choices follow. Set a cap that bears a defensible relation to the contract, commonly a multiple of the annual fee or of the value of the order concerned, and consider a higher cap for defined categories such as breach of confidentiality or infringement of third-party rights. Distinguish direct damage from indirect and consequential loss and define what you mean, because Dutch law has no fixed catalogue of indirect damage and the term will otherwise be construed against the party invoking it. And carve out intent and conscious recklessness explicitly; saying so in the contract makes the rest of the clause markedly more defensible.

Indemnities work differently in Dutch law from the systems they are usually borrowed from. There is no separate body of indemnity law: an indemnity is a contractual obligation to pay, and it will be interpreted on Haviltex lines like anything else. Say what triggers it, what it covers, whether it is capped, how claims are notified and who controls the defence. Duty to mitigate and contributory fault under article 6:101 BW apply unless clearly displaced.

Intellectual property does not transfer with the invoice

Paying for creative or technical work does not make you the owner of it. Under the Auteurswet the maker holds the copyright, and a transfer requires a deed: article 2 of the Auteurswet provides that copyright is transferred only by a written instrument, and that the transfer covers only those rights stated in the deed or necessarily following from its nature and purpose. A services agreement saying that the client owns all intellectual property is often read as an obligation to transfer rather than as a transfer itself.

Two statutory exceptions do assign rights without a deed. Article 7 of the Auteurswet gives the employer the copyright in works made by an employee in the performance of the work. Article 8 attributes authorship to a legal entity that publishes a work as its own without naming a natural person as maker. Neither of them helps with an external contractor, which is exactly where the problem arises.

Moral rights are separate again. Article 25 of the Auteurswet gives the maker rights of attribution and of objection to distortion; these cannot be transferred, and only some of them can be waived. A clause purporting to assign them assigns nothing. Patents follow their own rule: a transfer requires a deed under the Rijksoctrooiwet 1995 and must be registered to have effect against third parties, and inventions made by an employee in the performance of the work belong to the employer, with a possible claim to fair compensation for the inventor.

The clause you want has three parts: a present assignment of all rights in the deliverables, an obligation to execute any further deed required, and a waiver of moral rights to the extent Dutch law permits. Two of the three alone will not get you there.

Background intellectual property is the other half of the problem. Development work is almost always built on tools, libraries and frameworks the contractor brought with it, and if the contract is silent about them the client ends up owning a deliverable it cannot lawfully operate. Define background rights, grant a licence over them that is broad enough for the intended use and survives termination, and require a warranty that the deliverable does not infringe third-party rights, backed by an indemnity for infringement claims.

Getting out: termination, dissolution and notice

Dutch law distinguishes two mechanisms that English drafting tends to run together, and the difference decides what you are entitled to.

Opzegging is termination for the future. For an agreement of definite duration it is generally not available unless the contract provides for it. For a continuing agreement of indefinite duration, the case law of the Hoge Raad holds that it can in principle be terminated, but that reasonableness and fairness may require a sufficiently weighty ground, a reasonable notice period, or compensation, depending on the nature of the relationship, the investments made and the degree of dependence. A distributor who built a market over fifteen years cannot be given three months.

Ontbinding is dissolution for breach, governed by article 6:265 BW. Any failure in performance gives the other party the right to dissolve, unless the failure, given its special nature or minor significance, does not justify it. Where performance is still possible, dissolution normally requires that the debtor is in default, which under article 6:82 BW requires a written notice giving a reasonable period to perform. Skipping that notice is the single most common procedural mistake in Dutch commercial disputes, and it converts a strong case into a failed one. Our guide on dissolving a contract under Dutch law covers the sequence.

Dissolution has retrospective effects: it creates obligations to undo performances already rendered, which for a long-running services contract can be considerably more disruptive than termination for the future. Deciding which route to take is a strategic choice, and contracts should make both available and say which applies when.

What to write into the clause

Separate termination for convenience from termination for cause and give each its own notice period. List the events that count as cause, at minimum material breach not cured within a stated period, insolvency or a suspension of payments, and a change of control if that matters commercially. State expressly that the notice period agreed is intended as reasonable notice, because a court weighing an implied period will take a negotiated one seriously.

Then deal with the aftermath. Name the clauses that survive: confidentiality, intellectual property, liability, governing law and dispute resolution. Set out the wind-down: return or deletion of data, transition assistance and its price, final invoicing, and what happens to licences granted during the term. A transition clause that is negotiated at the start costs nothing; the same clause negotiated during a breakdown costs a great deal.

One warning about people. Labelling someone a contractor does not make them one. Dutch courts assess the substance of the relationship, and if work, wage and a relationship of authority are present the arrangement is an employment contract with all the protection that brings. The legislature has been tightening this: a statutory presumption of employment based on an hourly rate below a threshold was adopted in 2026 with entry into force to be set by royal decree, and the enforcement moratorium on false self-employment ended on 1 January 2025.

Tax and VAT: allocate it, do not improvise it

Tax is not a contract clause you can draft your way around, and the contractual task is narrower than it looks: allocate responsibility clearly and get the underlying position checked by a tax adviser before signing.

What belongs in the contract is unambiguous. State whether prices are exclusive or inclusive of VAT and at what rate. Record both parties’ VAT identification numbers. Say which party accounts for the tax where the reverse charge applies, as it commonly does for cross-border business-to-business services within the EU. Provide for invoices to meet the statutory requirements, because a defective invoice blocks the recipient’s deduction. And include an indemnity for penalties and interest caused by the other party’s non-compliance or by incorrect information it supplied.

What does not belong in the contract is a tax position. Whether a permanent establishment arises, how a supply is characterised, whether an exemption applies, what withholding is due: these are questions for a belastingadviseur, and a wrong answer written into a contract does not become right. Law & More does not provide tax structuring advice and will say so; what we do is make sure the agreement allocates the risk clearly and that the commercial terms survive whatever the tax answer turns out to be.

Signature, authority and the trade register

A well-drafted contract signed by someone without authority is a problem, and it is one that Dutch law makes easy to avoid because the information is public. The Kamer van Koophandel register records who may represent a Dutch company and up to what amount, and a director whose authority is registered as joint cannot bind the company alone. An extract from the register, dated close to signature, is cheap and settles the question.

Where the signatory turns out to have exceeded their authority, the counterparty can sometimes still rely on an appearance of authority created by the company itself, but that is an argument rather than a certainty, and it depends on circumstances attributable to the company. Ratification is available under article 3:69 BW and is the practical fix once the problem is spotted.

Electronic signature is generally sufficient. The eIDAS Regulation governs the categories, and article 3:15a BW treats an electronic signature as equivalent to a handwritten one provided the method used is sufficiently reliable given the purpose and the circumstances. For ordinary commercial agreements an advanced electronic signature through a recognised platform is normally enough. Where a deed is required, as for a transfer of copyright, a written instrument is needed and the reliability requirement is correspondingly higher; where a notarial deed is required, as for shares in a BV or for real property, no electronic route exists at all.

The eight issues at a glance

How to use this before you sign

Reviewing a Dutch agreement is a short exercise if it is done in the right order.

Start with the mandatory layer: is the counterparty a consumer, a franchisee, a commercial agent or a small supplier, and does a protective regime therefore override what you drafted? Then look at what applies by default when the contract is silent: statutory interest, the notification duty in article 6:89 BW, the Vienna Sales Convention, and a reasonable notice period for a continuing relationship. Only then read the clauses you negotiated, and ask of each whether it would survive the reasonableness control described above.

Finally, check the mechanics that decide disputes rather than deals: were the general terms actually provided, does the choice of court name a specific court, is the party signing authorised according to the trade register, and does the contract say how notices are validly given. These are dull points and they decide a surprising share of the cases that reach a judge.

Our articles on common mistakes in international commercial contracts, on the main types of commercial agreement and on business dispute resolution in the Netherlands go further into the individual topics.

Law & More advises international businesses on contracting with Dutch parties: drafting and reviewing commercial agreements, general terms and conditions, distribution, agency and franchise arrangements, and the disputes that follow when an agreement does not work. If you are about to sign, or have just discovered that a clause does not do what you expected, we can review the agreement and set out the options. Please contact us to discuss your situation.