Litigating against an American company is litigation for or against a party established in the US. At Musch Legal, we regularly advise Dutch clients in transatlantic disputes. American litigation differs fundamentally from Dutch litigation: discovery, jury trials, and punitive damages make cases more expensive and unpredictable. Costs typically run into several hundred thousand dollars per case. Strategic preparation is essential.
What is the legal problem? (Why is litigation in the US so different?)
American civil procedural law is fundamentally different. Discovery forces parties into extensive exchange of evidence. Jury trials make outcomes unpredictable. Punitive damages can far exceed actual damages. Each state applies its own procedural law; federal law applies to inter-state disputes. For Dutch parties, surprises often arise regarding cost levels, turnaround time, and evidentiary position.
What does the law say? (Which procedural laws apply?)
Federal Rules of Civil Procedure govern federal proceedings, with Rule 26 for discovery. State procedural law applies to state courts. Rules regarding service of process, motions, and jury trials vary by state. For recognition of US judgments in the Netherlands, Article 431 of the Dutch Code of Civil Procedure applies: no automatic recognition, a new Dutch procedure is required. For arbitration, however, the New York Convention of 1958 applies: immediate enforceability.
For service of process by Dutch parties in the US, the Hague Convention on Service of Process of Process of 1965 applies; for obtaining evidence Hague Convention on the Evidence of 1970.
Aspect
Netherlands
United States
Discovery
Limited (Article 843a of the Dutch Code of Civil Procedure)
Very broad (FRCP Rule 26)
Jury
Not for civil matters
Standard commercial
Punitive damages
Do not exist
Potentially multiple damages
Litigation costs loser pays
Limited (liquidation rate)
American rule: each party bears its own costs
Processing time
18-36 months
2-5 years including discovery
Aspect
Netherlands
United States
Discovery
Limited (Article 843a of the Dutch Code of Civil Procedure)
Very broad (FRCP Rule 26)
Jury
Not for civil matters
Standard commercial
Punitive damages
Do not exist
Potentially multiple damages
Litigation costs: loser pays
Limited (liquidation rate)
American rule: each party bears its own costs
Runtime
18-36 months
2-5 years including discovery
What risks do companies face? (What costs and risks are incurred?)
Discovery typically costs $50,000-$500,000 per case for document review alone. Attorney hourly rates in the US are $400-$1,500 per hour. Jury trials lead to unpredictable outcomes. Punitive damages can far exceed actual damages. The American Rule means that the winner typically bears its own costs. Runtimes of 2-5 years are normal. Often prohibitive costs for SME clients.
Practical example from our practice (How did we avoid Texas proceedings?)
Musch Legal was consulted by a Dutch supplier who had been sued in Texas by an American buyer under a forum selection clause in an old purchase order. Defense cost $380,000 in the motion phase alone. When renegotiating contracts for other relationships, we opted for Dutch law with ICC arbitration in The Hague — enforceable in the US under the New York Convention of 1958. The subsequent dispute resulted in a ruling within 14 months for €110,000 in litigation costs — a significant difference.
What can you do? (What steps do you take?)
For new contracts: choose arbitration under the ICC, NAI, or LCIA instead of an American court. Align the choice of law with Dutch or English law. For existing cases: assess jurisdiction incident, motion to dismiss on forum non conveniens, or mediation. Work with U.S. counsel (admitted in the proper state). Assess D&O and legal insurance coverage. Engage Musch Legal as lead counsel for coordination.
Contracting with U.S. companies: the key differences