Commercial Litigation

Amsterdam Court of Appeal declared €1.3 billion Fortis collective settlement binding – will the critical observations of the Court have an impact on future use of the WCAM?

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Introduction and background of the case On 13 July 2018, the Amsterdam Court of Appeal approved the collective settlement reached in the Dutch mass claims litigation between Ageas (Fortis’ legal successor) and several commercial and non-profit claimant organisations acting on behalf of shareholders of the former Dutch/Belgian banking and insurance group Fortis. Therewith, the settlement agreement becomes binding upon all … Read more

A redundancy payment scheme for a bank manager and court’s obligation to apply statutory provisions ex officio

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What if an agreement between parties is in violation of a statutory provision, but the parties do not raise this point in proceedings? Should the court ascertain this violation ex officio and determine whether the contract is void or valid nonetheless (which may be the case under Dutch contract law)? This question was recently submitted to the Dutch Supreme Court … Read more

Stibbe Litigators participate in consultation draft bill to modernise the law of evidence

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Members of Stibbe’s Commercial Litigation practice group have participated in the public consultation of a draft bill to modernise and simplify the law of evidence in civil procedure. An overview of the draft proposal was provided previously on this blog by Petra Vos and Daan Barbiers. The main goal of the draft bill is to enhance truth seeking in civil … Read more

A proposal to fundamentally change the law on evidence in Dutch civil procedure

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Introduction On 31 May 2018 Dutch Minister Dekker published a draft bill for consultation that primarily aims to modernise and simplify the law of evidence within Dutch civil procedure. The draft bill draws heavily on a report dated 10 April 2017 from the expert group on the modernisation of law of evidence. The Dutch Bar Association has since published an … Read more

Can an SPV be misled before it exists?

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Transactions are regularly structured through special purpose vehicles (SPVs). An SPV is often established at the end of the negotiations, just before signing the agreement. The other party to the agreement provides information and raises certain expectations during the negotiations. The individuals negotiating for the SPV do not necessarily become officers of the SPV once it is established. Examples of … Read more

Ongoing commercial transactions entered into before 1 July 2017 now subject to new 60 day payment term limit

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1.      Background: Statutory commercial interest Sixteen years ago, a provision on statutory interest in commercial agreements was introduced in article 6:119a Dutch Civil Code (DCC) to first implement Directive 2000/35/EC and subsequently Directive 2011/7/EU. These Directives were introduced to ensure compliance and prevent payment delays in commercial transactions. If a party to a commercial transaction exceeds a payment … Read more

Netherlands Commercial Court coming soon?

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On 8 March 2018, the bill concerning the Netherlands Commercial Court was passed by the House of Representatives. However, the court cannot start until the Senate has also approved the bill. The chairman of the Council for the Judiciary, Frits Bakker, has stated that the Council is pleased that the bill has been passed by the House of Representatives and … Read more

Dutch courts can reduce contractually agreed penalties to an amount that is not unacceptable

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Introduction You think you have made clear arrangements about the exclusivity of your supplier’s services. The supplier has agreed to service your company only. You have even agreed unequivocal penalty clauses under which the supplier pays a penalty for every breach and another one for every day the breach continues. Unfortunately, the supplier breaches the exclusivity clause, forcing you to … Read more

Can acts and statements from an unauthorised representative qualify as acknowledgment of liability and interrupt a limitation period?

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Introduction On 26 January 2018, the Supreme Court delivered a judgment (ECLI:NL:HR:2018:108) about the interruption of the limitation period for a claim for damages. The key element in this case was whether the acts and statements of an insurer and a loss adjuster qualified as an acknowledgement of liability and, if so, whether this acknowledgement could be attributed to the … Read more

Who is a consumer? The dynamic approach to the concept of ‘consumer’ under the Brussels I Regulation

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On 25 January 2018, the European Court of Justice (“ECJ”) rendered a preliminary ruling in a case between Austrian citizen Maximilian Schrems and online social network Facebook. The ruling is important for two reasons. First, the ECJ approved a dynamic approach to the concept of ‘consumer’ under the Brussels I Regulation. Secondly, the ECJ clarified that the special consumer forum … Read more