The impact of COVID-19 (coronavirus) on commercial contracts: force majeure?

Recent measures taken by the Dutch government to contain the outbreak and spread of COVID-19 (a novel Coronavirus) have led to an increase in questions regarding the consequences for commercial contracts. These measures influence society as whole, and have a serious impact on a wide range of specific sectors and industries. These measures have put the performance of commercial contracts, … Read more

Calculating future damages from the past, Science Fiction or law?

Introduction Imagine having been blocked from expanding your business in 1975, litigating a claim for lost opportunities for all those years, winning that proceedings on the merits, and then having to start separate legal proceedings to determine the amount of damages to be awarded (schadestaat procedure). How does one value, in 2019, a business opportunity lost in 1975? Background to … Read more

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

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

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

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