Exoneration clauses in commercial contracts: excluding indirect damage

Introduction In Dutch legal practice, contracting parties often agree on exoneration clauses in commercial contracts in which liability for indirect damage is excluded. However, the term indirect damage does not exist in the Dutch Civil Code, and in the Dutch language there is no generally accepted meaning for indirect damage. Conflicts therefore quite frequently arise between contracting parties in relation … Read more

Third-party effect of exoneration clauses in commercial contracts

Introduction Under Dutch law, the general principle is that contracts only have legal effects for the contracting parties themselves. In principle, contracts have no legal effects for third parties. If contracting parties agree on exoneration clauses in commercial contracts, the exoneration clauses will thus only have legal effects between those parties. Based on settled case law and pursuant to Dutch … Read more

Sustainability of exoneration clauses and commercial contracts

Introduction In Dutch legal practice, contracting parties often agree on exoneration clauses in commercial contracts.  Exoneration clauses limit or exclude the debtor’s liability. In most cases, it is not possible to conclude an agreement without exoneration clauses, as commercial transactions often result in a high risk. Under certain circumstances, however, exoneration clauses may be unreasonable to the other party to … Read more

Collective action stopped due to lack of benefit for class members

On 9 December 2020, the Amsterdam District Court (the “Court”) declared a foundation inadmissible in a collective action regarding alleged manipulation of LIBOR, EURIBOR and other interest rate benchmarks. The foundation sought declaratory judgments that Rabobank, UBS, Lloyds Bank and ICAP (the “defendants”) had engaged in wrongful conduct and unjust enrichment vis-à-vis the class members. The Court ruled that that … Read more

The Dutch scheme – highlights of the 10 judgments rendered to date

On 1 January 2021, the Act on confirmation of private restructuring plans (Wet homologatie onderhands akkoord, the “Dutch Scheme“) came into effect. At time of writing (25 February 2021), the Dutch courts have rendered 10 judgments in connection with the Dutch Scheme. This blog provides you with the highlights of this case law. 1. General observations Based on the information … Read more

Negotiating a contract under conditions; subject to finance

Introduction In the pre-contractual phase, Dutch professional contracting parties often negotiate a financing arrangement clause or a “subject to finance” clause.  A subject to finance clause provides a condition under which an agreement will be concluded (totstandkomingsvoorwaarde), a suspensive condition (opschortende voorwaarde) or a resolutive condition (ontbindende voorwaarde). This depends on the wording of the clause and the circumstances of … Read more

Negotiating a contract under conditions; subject to approval

Introduction In Dutch legal practice, one of the most common conditions is the reservation of approval or the “subject to approval” clause. A “subject to approval” clause provides a condition under which an agreement will be concluded (totstandkomingsvoorwaarde), a suspensive condition (opschortende voorwaarde) or a resolutive condition (ontbindende voorwaarde). This depends on the wording of the clause and the circumstances … Read more

Right to free choice of lawyer also applies to stages in a dispute that may lead to proceedings

The European Court of Justice (ECJ) has found in a judgment of May 2020 that the right of a legal assistance insured person to freely choose his or her lawyer applies not only to proceedings before a court or an administrative body, but also to stages in a dispute that may lead to such proceedings before a court. In this … Read more

The Dutch scheme – Classes and voting

The Act on confirmation of private restructuring plans (Wet homologatie onderhands akkoord) – which introduces a framework allowing debtors to restructure their debts outside formal insolvency proceedings (termed the “Dutch Scheme“) – was adopted by the Dutch Senate on 6 October 2020 and will enter into force on 1 January 2021. In previous blogs we have summarised when the Dutch Scheme can be … Read more

Amsterdam District Court puts a halt to unlimited forum shopping

On 25 November 2020, the Amsterdam District Court (the “Court”) declined jurisdiction over all non-Dutch defendants (the “foreign defendants“) in proceedings for compensation of damage based partly on an infringement of Article 101 TFEU. The proceedings were initiated by four public utility companies from the Gulf States (“claimants“) against both Dutch and foreign defendants. The court rejected the claimants’ argument … Read more