Supreme Court nuances the consequences of a wrongful invocation of the right of suspension

In its decision of 4 November 2016, ECLI:NL:HR:2016:2517 (CIA / Heredium), the Supreme Court ruled that if – in hindsight – the right of suspension appears to have been invoked wrongfully, the debtor cannot be considered to be in default automatically. Whether a party was entitled to invoke a right of suspension depends on the interpretation of the agreement, taking … Read more

Double violations: special duties of care and public law obligations

On 2 September 2016, the Dutch Supreme Court limited the ability of financial institutions to invoke the contributory negligence-defense (“eigen-schuld-verweer“) when they have not only neglected a special duty of care towards their counterparty under Dutch civil law but have also violated an obligation under Dutch public law (ECLI:NL:HR:2016:2012 and ECLI:NL:HR:2016:2015). Double duties under Dutch law In the Netherlands, as … Read more

District Court of Rotterdam rejects the applicability of arbitration clauses in antitrust damages litigation

On 25 May 2016, the District Court of Rotterdam (“the Court“) ruled that it had jurisdiction to hear one of the elevator follow-on damages litigation claims. The Court declined to apply the arbitration clauses relied upon by the defendants, taking the view that those clauses did not cover antitrust damages claims. The case has its origins in a 2007 infringement … Read more

Update on changes in antitrust damages claims legislation in the Netherlands

On 7 June 2016,  a legislative proposal to enact the EU Antitrust Damages Directive (the “Proposal“) was submitted to the House of Representatives (Tweede Kamer). The Proposal serves to implement the Damages Directive in various sections of the Dutch Civil Code (“DCC“) and the Dutch Code of Civil Procedure (“DCCP“). EU Member States must implement the Damages Directive by 26 … Read more

Disclosure of audit files: a balancing exercise between confidentiality and the public interest to uncover the truth

Amsterdam Court of Appeal, 5 January 2016, ECLI:NL:GHAMS:2016:30 (Colima c.s./PwC) On 5 January 2016, the Amsterdam Court of Appeal ruled that under circumstances, the public interest to uncover the truth outweighs the confidentiality duty of an auditor towards his client in case of a claim for disclosure of records. In the case at issue, the Court of Appeal ordered that … Read more