Contracting with an American party means working in a different legal ecosystem. Common law, jury trials, discovery, and federal sanctions have consequences that Dutch entrepreneurs often underestimate. In our practice, we advise Dutch clients who adopted American model contracts too lightly. A few targeted adjustments prevent unexpected risks, particularly regarding choice of law, choice of forum, and liability.
What is the legal problem?
American law follows the common law tradition and is read strictly according to the text. What is not explicitly regulated does not automatically apply. Concepts such as consideration, representations, and indemnities differ from their Dutch equivalents. Applying an American model contract to a Dutch legal relationship can lead to duplicate or conflicting provisions, ambiguities, and unexpected risks regarding sanctions or export control.
What does the law say?
The US does not have a uniform federal contract law. Each state applies its own rules, often based on the Uniform Commercial Code (UCC, particularly Section 2 for sales of goods). The U.S. is a contracting state to the Vienna Sales Convention — this applies automatically to B2B international sales between contracting states, unless excluded under Section 6 of the CISG. Federal law governs export control (Export Administration Regulations, EAR), sanctions (OFAC), anti-corruption (Foreign Corrupt Practices Act, FCPA, 1977), and privacy (sector-specific). For litigation, Federal Rules of Civil Procedure apply, with broad discovery under Rule 26. What risks do companies face? Procedural matters before U.S. courts are significantly more expensive than in the Netherlands — discovery costs an average of $50,000 to $500,000. Jury trials lead to unpredictable outcomes. Punitive damages under U.S. law have no European equivalent. An unintended acceptance of U.S. jurisdiction without a choice of forum leads to proceedings in Delaware, New York, California, or Texas, with associated costs and legal disadvantage.
Practical example from our practice
We advised a Dutch supplier of parts who sold to a U.S. customer under a short purchase order without a choice of law or choice of forum. After a defect, the customer sued in Texas. Our client had to appear, go through discovery, and defend themselves against a jury trial. Costs rose to well over the contract amount. Upon renegotiation, we opted for Dutch law, with arbitration under the ICC in The Hague — enforceable in the U.S. under the New York Convention of 1958.
What can you do?
Always work with a clear choice of law and choice of forum or arbitration clause. Avoid blindly adopting U.S. model contracts. Tailor indemnities, exonerations, and warranties to your risk profile. Assess export control (EAR), sanctions (OFAC), and FCPA exposure for each transaction. For custom products: incorporate product liability insurance. See also our article on Sanctions Clauses in International Agreements.