The Netherlands has traditionally been known as a country in which it is easy to seize before judgment. However, preliminary relief judges seem to be increasingly strict when it comes to granting permission to levy a pre-judgment seizure. For example, creditors must now properly indicate the specific basis of a claim and preliminary relief judges often expect evidence to be submitted. In a recent case, the preliminary relief judge of the Noord-Holland District Court ruled, in so many words, that restraint is required.
The Utrecht Subdistrict Court recently held that fire damage to a yacht caused by an air conditioning panel did not result from product liability. The court clarified the definition of 'another object' under the Dutch Civil Code and the EU Product Liability Directive, holding that because the control panel was specifically designed for use in the vessel, it was considered part of the yacht. The decision provides guidance for yacht insurers and increases the possibility of successful recovery.
The Amsterdam Court of Appeal recently ruled in favour of British Petroleum Plc (BP) in a securities class action initiated by the Dutch Association of Shareholders (VEB). VEB had initiated proceedings on the basis of the Civil Code, in which it sought a declaratory judgment regarding BP's liability towards investors who had bought, sold or held BP ordinary shares around the time of the Deepwater Horizon oil platform explosion in 2010. The court's judgment is a setback for international investors.
The Supreme Court recently rendered a landmark judgment on second medical use claims – more specifically, Swiss-type claims – which have been the subject of significant legal uncertainty throughout Europe. Although the judgment provides welcome clarification on Swiss-type claims with regard to the possibility of indirect infringement and the standards for direct and indirect infringement, some questions still remain.
Many logistics service providers – such as terminals, warehouse keepers, freight forwarders and shipyards – use general terms and conditions in order to limit their risks. They often make use of several sets of standard terms and conditions, depending on the activities being carried out. However, a recent district court case should serve as a warning to these service providers of the severe risk that no standard terms will be regarded as validly incorporated.
The Hague Court of Appeal recently rendered its judgment in a case in which the claimant was seeking protection for its trade name, Parfumswinkel, against a competing online perfume shop acting under the trade name Parfumswebwinkel. Although the outcome of this case is acceptable, the reasoning behind it is not necessarily correct. The main issue in the proceedings was whether trade name protection should be granted to trade names that are purely descriptive and lack inherent distinctive character.
Directors and supervisory board members of public and private companies are increasingly being sued by receivers in bankruptcies on the basis of the Civil Code. While directors are protected to a certain extent by indemnification or director and officer liability insurance, they are often confronted by receivers that levy pre-judgment garnishment on the insurer with which the director is insured in order to secure their recovery. In reality, such garnishment is undesirable for directors, insurers and receivers.
Unlike in many other jurisdictions, it is possible under Dutch corporate law for a foreign legal entity to be appointed as a statutory director of a Dutch legal entity. Therefore, a natural person can act as a director of a legal entity which in turn acts as a director of another company. A number of Supreme Court cases have examined whether it is possible for an ultimate director to limit his or her liability by way of a foreign legal entity director.
The scope of Article 7 of the International Convention Relating to the Arrest of Seagoing Ships grants jurisdiction to a court granting leave for arrest to also hear the substantive claims. There has been ongoing debate over whether Article 7 also applies to vessels flying the flags of countries which are not signatories to the convention. Several recent decisions – the most recent of which came from Curacao – have reaffirmed that the article's application is not limited to vessels flying the flags of contracting states.
Since the launch of its online second-hand e-book service in 2014, Tom Kabinet's activities have been opposed by Dutch publishers, which have unsuccessfully initiated interim injunction proceedings against the company with regard to e-books that were initially purchased and downloaded lawfully (with the copyright owner's consent). At present, proceedings on the merits of the case are pending before The Hague District Court, which recently decided to refer questions to the European Court of Justice.
The Arnhem-Leeuwarden Appellate Court recently referred questions regarding which kinds of object can be classified as copyrightable works to the European Court of Justice. The case that led to the court's referral addressed the question of whether a certain taste can be protected under copyright law. The particular taste for which protection was sought was a popular cheese product.
The Rotterdam District Court recently determined that a preliminary survey may qualify as a provisional measure within the meaning of the EU Brussels I Regulation if it is established that the measure aims to prevent evidence from being lost. In the case at hand, the court held that the survey did not qualify as such a measure, as the party making the request had indicated that the survey was aimed at obtaining access to witness statements and documents previously attached.
Over the years, the Dutch courts have demonstrated a willingness to adopt a clear and singular approach to the global limitation of liability issues arising from maritime casualties. In the process, the courts have become a forum of choice for several interests involved in worldwide shipping. The Hague Appeal Court recently added to the body of rulings in this respect.
The indicative tariffs used to determine reasonable and proportionate legal costs in IP cases were recently revised, following the European Court of Justice's judgment regarding the interpretation of the EU Enforcement Directive and the Supreme Court's judgment that judges must decide ex officio on the assignment of the cost of proceedings and the amount thereof. Notably, the category of 'very simple' cases has been introduced, in which only the standard liquidation rates will apply.
The Rotterdam District Court recently rendered its judgment in a matter between two parties that had jointly run a food truck. After having gone their separate ways, the food truck owner continued to operate the business. When the other party continued to use the business's name and logo, the food truck owner demanded that it cease to do so and commenced proceedings to that effect.
Dutch case law regarding the interpretation of the Uniform Rules Concerning the Contract of International Carriage of Goods by Rail (CIM) is limited. By contrast, the Supreme Court has produced a rich body of case law on the interpretation of the Convention on the Contract for the International Carriage of Goods by Road (CMR). The Rotterdam court recently held that two landmark Supreme Court rulings on liability under the CMR also apply to rail carriage liability under the CIM.
Under the Recast Brussels Regulation, where a claim is based on an unlawful act, the court of the place where the harmful event occurred has competence. However, determining the place where the harmful event occurred can lead to disputes. In a recent decision, the European Court of Justice emphasised that the jurisdiction of the courts at the place where the harmful event occurred is a rule of special jurisdiction which must be interpreted independently and strictly.
In a recent decision which authorised the arrest of a vessel in four EU jurisdictions, the Amsterdam court reconfirmed that the Netherlands will not hesitate to attach assets throughout the European Union under the recently revised Brussels I Regulation. The decision strengthens the perception of the Netherlands as a ship arrest haven by demonstrating that a Dutch arrest order could provide a solution for creditors seeking to attach assets throughout the European Union.
Two recent decisions from the Court of Appeal of The Hague have highlighted the issue of which claims fall under Articles 2(d) and (e) of the Convention on Limitation of Liability for Maritime Claims (LLMC). In both cases, barge and cargo owners claimed salvage costs against the owners of seagoing vessels, which sought to limit their liability under the LLMC.
The Arnhem-Leeuwarden Court of Appeal recently ruled that carriers can be held liable under national law for damage to goods during discharge. The decision adds to the body of case law on the liability of Convention on the Contract for the International Carriage of Goods by Road (CMR) carriers, in addition to their liability under the CMR convention.