Update: International Jurisprudence From The Netherlands
International dispute rulings were relatively limited in the beginning of this year, but the courts are picking up the pace since March. This update provides you an overview of the recent developments.
In the case brought before the Court of Rotterdam by Horrex Horren B.V. the defendant Hans Holzhauer GmbH & Co KG filed a motion to stay proceedings because Horrex Horren B.V. also commenced pending proceedings before the Landgericht Hagen in Germany. In the Dutch proceeding Holzhauer GmbH & Co KG was served on December 24, 2015 to appear in court on November 30, 2016. Based on Dutch law the legal proceedings commenced from the moment Holzhauer GmbH & Co KG was served. The German law differs and determines that the legal proceeding in Germany commenced at the moment the Landgericht Hagen received the document instituting the proceedings (the ‘Klage’), which was December 31, 2015. Therefore the Court of Rotterdam took into account Article 32 (a) and (b) of the Brussels Recast Regulation and determined that the Dutch proceeding commenced before the German proceeding and denied the motion to stay. The judgment is a good example on how local laws and regulations result in cross-border litigation effects.
In the case brought before the Court of Oost-Brabant the Italian company Blue Milano SRL, its board members and another Italian company (C14) were summoned by two plaintiffs pursuing non-conformity and non-contractual obligations claims related to the sale, delivery and instalment of sound absorbing panels in stadiums and in particular to the way the board members filed the bankruptcy of Blue Milano SRL on June 13, 2016 limiting the possibilities of recovery. The defendants filed a motion disputing jurisdiction. The board members argued that the bankruptcy of Blue Milano SRL took place in Italy, the damages were suffered in Italy and the claims related to director liability connected to the bankruptcy proceeding. They claimed Article 3 section 1 of the Insolvency Regulation prevails, resulting in the jurisdiction of the Italian bankruptcy court. However the Dutch court determined that the main damages were suffered in the Netherlands due to the non-conformity of the sound absorbing panels installed in the stadiums. Furthermore the court ruled that the claims against the board members do not arise out of specific insolvency proceedings and that based on the Nickel & Goeldner Spedition ruling (EU:C:2014:2145) the Insolvency Regulation does not apply. C14 did get off the hook due to a choice of forum clause, which is deemed to be a separate agreement even if the whole agreement might be void.
The Supreme Court ruled on the possibilities to appeal a court decision in which an international arbitration award was recognized. Article III of the New York Convention embodies a pro-enforcement policy based on the general principle that “each Contracting State shall recognize arbitral awards as binding and enforce them”. The Article also states that national rules of procedure governing the recognition and enforcement of foreign arbitral awards in each Contracting State shall not impose “substantially more onerous conditions or higher fees or charges on the recognition or enforcement of arbitral awards to which this Convention applies than are imposed on the recognition or enforcement of domestic arbitral awards.” Appeal proceedings for the recognition of domestic arbitration awards are asymmetrical in the Netherlands, meaning that a) appeal is not possible against a decision recognizing such arbitration award and b) appeal is possible against a decision denying the requested recognition of the domestic arbitration award. If the domestic arbitration award is recognized, appeal is only possible if the principle of fair trail of Article 6 ECHR is at stake. The Supreme Court ruled that Article III of the New York Convention in general prohibits an appeal of a decision in which an international arbitration award is recognized in the Netherlands due to the laws- and regulations concerning the recognition of domestic arbitration awards. Allowing appeal under those circumstances would violate Article III of the New York Convention. The Supreme Court also ruled that the fair trail principle was not violated, because of the available remedies to nullify or revocate the arbitration award in its place of origin, the United States.