Commercial Litigation

Does selling a phone on an online marketplace make you a “trader” under the Unfair Commercial Practices Directive and the Consumer Rights Directive?

Online marketplaces provide sales channels not only for professional traders but also for individuals selling second-hand goods. For buyers, online advertisements do not always make it clear whether the seller is a professional trader or an individual. This distinction is important because consumers buying from a professional trader can benefit from EU consumer laws, while these protections do not apply … Read more

Follow-on cartel damages claim dismissed: don’t bury courts under paper work

A recent ruling by the Dutch Court of Appeal confirmed that claimants will need to sufficiently substantiate their claim that they suffered loss due to a cartel, even in follow-on cases. Despite a presumption that sales or service contracts concluded during the cartel period have been affected by the cartel, claimants will still need to provide the courts with concrete, … Read more

Legislative proposal for mass damages claims approved by the Dutch House of Representatives

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On 29 January 2019, the Dutch House of Representatives approved the legislative proposal that introduces collective actions for damages under article 3:305a of the Dutch Civil Code (DCC). This proposal aims to amend article 3:305a DCC to enable collective actions for damages on an ‘opt-out’ basis. The legislative proposal allows for such claims provided that the requirements of article 3:305a … Read more

Special regulation on franchise agreements proposed: more protection for franchisees

On 12 December, a draft legislative proposal (“proposal“) was published containing a special regulation on franchise agreements. Until now, there have been no special regulations regarding franchise agreements. The Explanatory Memorandum mentions that franchisees believe that franchisors have a more dominant position within their relationship. According to franchisees, this causes unreasonable and undesirable situations. The Dutch Franchise Code, a means … Read more

Rotterdam District Court rules on jurisdiction in Petrobras collective action

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On 19 September 2018, Rotterdam District Court ruled (ECLI:NL:RBROT:2018:7852) that it has jurisdiction to hear claims against Petrobras and others in a collective action concerning an alleged bribery scheme. However, the Court decided that it did not have jurisdiction for a number of claims against non-Dutch defendants. The Court also denied a request to stay the proceedings until a decision in … Read more

Netherlands Commercial Court to open its doors in early 2019

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On 11 December 2018, the Senate approved the bill for the new international trade chamber of the Amsterdam District Court, known as the Netherlands Commercial Court (NCC), and the Netherlands Commercial Court of Appeal (NCCA). All the political groups supported the bill, despite previously expressing concerns about the accessibility of the English-language court for small and medium-sized enterprises (SMEs), the … Read more

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