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

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

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

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

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

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?

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

Right to disclosure of bookkeeping limited by purpose

In the event of bankruptcy, creditors are entitled to disclosure of the bookkeeping of the estate under certain conditions. In its decision dated 8 April 2016 (ECLI:NL:HR:2016:612), the Dutch Supreme Court ruled that this right is limited and depends on the purpose of the disclosure. Creditors are not entitled to disclosure if the purpose is to retrieve information to support … Read more

Failure to appeal a judgment by one of the debtors with joint and several liability has clear-cut consequences in external relationships with other parties but uncertainty prevails in internal relationships between the debtors themselves

On 18 December 2015 the Supreme Court decided (ECLI:NL:HR:2015:3637) that if debtors with joint and several liability are ordered to pay damages to a party in the first instance, the joint and several debtor that does not appeal the original decision cannot profit from a successful appeal brought by the other debtors with joint and several liability against that decision. … Read more

Recognition of decisions of Member States: threshold public order exception too high?

European Court of Justice 16 July 2015 in Case C-681/13 Member States must recognise a decision by the courts of another Member State even if it is obviously contrary to EU law, unless the decision constitutes a manifest breach of a rule of law regarded as essential in the EU legal order. This is perhaps the unsatisfactory consequence of the … Read more

Product liability under Directive 85/374: a potential defect, is a defect too

In its decision of 5 March 2015 (joined cases C-503/13 and C-504/13), in reply to preliminary questions of the German Bundesgerichtshof, the European Court of Justice (ECJ) clarified that under Directive 85/374 an implantable medical device can be considered defective for the mere reason that the product belongs to a group or series of products that has a potential risk … Read more