A choice of forum is a contractual designation of the court or arbitrator competent to adjudicate disputes. In our practice, we see that entrepreneurs negotiate the choice of forum as a final step — often incorrectly. A good choice of forum makes litigation predictable, affordable, and promising. An unfavorable choice makes every claim expensive and uncertain. Those who know what is feasible negotiate a stronger position from the start.
What is the legal problem?
A choice of forum determines which court or arbitrator has exclusive or non-exclusive jurisdiction. Without a choice of forum, international treaties and national law decide on jurisdiction. This often leads to proceedings abroad, involving unfamiliar procedural law, higher costs, and language problems. A good choice of forum provides a procedural advantage and accelerates the recognition and enforcement of judgments.
What does the law say?
Within the EU, Brussels I-bis (Regulation (EU) 1215/2012) governs choices of forum in Article 25, with strong effect for exclusive choices of forum. Outside the EU, the Hague Convention on Choice of Forum 2005 applies (EU, UK, Singapore, Mexico, China since 2025). The Hague Convention on Judgments 2019 enhances international recognition. Arbitration clauses fall under the New York Convention 1958.
Under Dutch law, Articles 8 and 9 of the Code of Civil Procedure govern international jurisdiction. Protective mandatory rules apply to consumers and employees under Articles 17-23 of Brussels I-bis.
What risks do companies face?
Litigating in an unfamiliar jurisdiction increases costs and risk. Judgments by Dutch courts are not always enforceable in third countries. Choosing a forum in favor of a country where you are unfamiliar leads to strategic weakness. In the case of non-exclusive forum selections, a race to the court sometimes arises between parties. Incorrect choices hinder swift enforcement and strengthen the position of your counterparty.
Practical example from our practice
We advised a Dutch exporter who, under pressure, agreed to a forum selection for the court of Sao Paulo. In the event of a dispute, he had to litigate in Brazil in Portuguese, with local lawyers and high costs — estimated at 280,000 euros for a claim of 320,000 euros. During the renegotiation of the framework contract, we incorporated the following: ICC arbitration in The Hague, three arbitrators, and English as the language of proceedings. The subsequent dispute resulted in an enforceable ruling within 14 months for a fee of 95,000 euros in litigation costs.
What can you do?
Align your choice of forum with your ability to litigate, the enforceability of rulings, and your risk profile. Preferably choose a Dutch court under Article 25 of Brussels I-bis, arbitration in The Hague (NAI), or a neutral jurisdiction. Avoid forum selections for unpredictable local courts. Combine this with a choice of law. Take mandatory law for consumers into account. See also our article on Arbitration or court?