Doing business in the United States brings great commercial opportunities but a fundamentally different legal reality. The US has no uniform federal contract law; each state applies its own rules based on the Uniform Commercial Code (UCC). At Musch Legal, we assist Dutch clients with their first US export, the formation of LLCs, and M&A. Discovery, jury trials, and punitive damages make litigation fundamentally different from that in Europe.
What is the legal problem? (What is different about the US?)
American law follows the common law tradition. Contracts are 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 European equivalents. Litigation is fundamentally different: discovery, jury trials, punitive damages. Federal rules on export control and sanctions have extraterritorial effect.
What does the law say? (Which US rules affect you?)
Each state applies its own contract law, often based on the Uniform Commercial Code (UCC Section 2 for sales of goods). The US is a Contracting State to the CISG — automatically applicable 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 (FCPA 1977), and privacy (sectoral: HIPAA, CCPA, COPPA).
Federal Rules of Civil Procedure apply to litigation. Discovery under Rule 26 is very broad. For M&A and major contracts, Delaware law and the Delaware Chancery Court are often chosen.
Aspect
Netherlands/EU
United States
Contract law
Federal/EU law
Per state (UCC basis)
Litigation
Limited discovery
Broad discovery (FRCP Rule 26)
Jury trial
Not for civil matters
Standard in commercial cases
Punitive damages
Do not exist
Possible, could involve multiple damages
Sanctions
EU + Sanctions Act 1977
OFAC + extraterritorial
Aspect
Netherlands/EU
United States
Contract law
Federal/EU law
Per state (UCC basis)
Litigation
Limited discovery
Broad discovery (FRCP Rule 26)
Jury trial
Not for civil matters
Standard in commercial cases
Punitive damages
Do not exist
Possible, can amount to multiple damages
Sanctions
EU + Sanctions Act 1977
OFAC + extraterritorial
What risks do companies face? (Where do Dutch companies fail?)
Procedures before American judges are significantly more expensive than in the Netherlands. Jury trials lead to unpredictable outcomes. Punitive damages under American law have no European equivalent. Unintended acceptance of American jurisdiction without a choice of forum leads to proceedings in Delaware, New York, California, or Texas. Product liability under state law can result in millions in claims.
Practical example from our practice (How did Musch Legal save a Texas case?)
Musch Legal represented a Dutch supplier of parts selling to an American buyer under a short purchase order without a choice of law or choice of forum clause. After a defect, the buyer sued in Texas. Our client had to appear, go through discovery proceedings, and defend themselves against a jury trial. Costs were $380,000 for the jurisdiction motion alone. Upon renegotiation, we opted for Dutch law with ICC arbitration in The Hague — enforceable in the US under the New York Convention of 1958.
What can you do? (What steps do you take for US export?)
Always work with a clear choice of law and choice of forum or arbitration clause. Avoid blindly adopting American 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. Engage Musch Legal with US counsel for transatlantic deals.
Contracting with US companies: the key differences