Latest updates

Fact(or) finding: locating pure financial damage in cross-border securities class actions
AKD NV
  • Litigation
  • Netherlands
  • December 12 2017

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.

Supreme Court sets standards for direct and indirect infringement of Swiss-type claims
AKD NV
  • Litigation
  • Netherlands
  • December 05 2017

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.

Supreme Court sets standards for direct and indirect infringement of Swiss-type claims
AKD NV
  • Intellectual Property
  • Netherlands
  • December 04 2017

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.

Logistics service providers must be clear on general terms and conditions
AKD NV
  • Litigation
  • Netherlands
  • November 14 2017

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.

Logistics service providers must be clear on general terms and conditions
AKD NV
  • Shipping & Transport
  • Netherlands
  • November 08 2017

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.

Scope of protection of descriptive trade names
AKD NV
  • Litigation
  • Netherlands
  • October 24 2017

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.

Scope of protection of descriptive trade names
AKD NV
  • Intellectual Property
  • Netherlands
  • October 23 2017

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.

Can you prevent pre-judgment garnishment by receiver of D&O insurance?
AKD NV
  • Litigation
  • Netherlands
  • October 17 2017

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.

Geothermal financing developments
Stek Advocaten BV
  • Energy & Natural Resources
  • Netherlands
  • September 25 2017

The number of geothermal energy projects in the Netherlands is rapidly increasing and there are growing calls for the existing legal framework to be reshaped in order to meet the specific needs of such projects and remove bottlenecks. In light of geothermal energy's potential in the much-desired energy transition, it is hoped that these growing pains can be quickly overcome and that the industry can continue to develop itself as a standalone professional industry.

Will ruling denying recognition of Yukos bankruptcy affect setting aside of $50 billion UNCITRAL award?
Freshfields Bruckhaus Deringer LLP
  • Arbitration & ADR
  • Netherlands
  • September 21 2017

The Amsterdam Court of Appeals recently ruled that the Russian liquidation order regarding OAO Yukos Oil Company is contrary to Dutch public order and therefore null and void. An interesting question is whether the judgment will have a bearing in the appeal of the annulment proceedings concerning the $50 billion Energy Charter Treaty arbitration case between former Yukos shareholders and Russia, which is pending before The Hague Court of Appeal.

Amsterdam Court of Appeals denies recognition of Yukos bankruptcy based on public order exemption
  • Insolvency & Restructuring
  • Netherlands
  • September 15 2017

The Amsterdam Court of Appeals recently ruled that the 2006 Russian liquidation order regarding OAO Yukos Oil Company is contrary to Dutch public order and therefore null and void. The court's reasoning was largely based on a 2014 European Court of Human Rights judgment following a complaint lodged against Russia by the former Yukos shareholders with regard to Yukos's liquidation.

OnDemand Three's a crowd? Third-party arbitration funding
Freshfields Bruckhaus Deringer LLP
  • Netherlands
  • September 14 2017

The third-party arbitration funding market is clearly developing in the Netherlands. A number of international funders are active on the Dutch market and, for the past few years, several national funders have been equally active. It is difficult to say at this stage whether external regulation is required. Once funders cater more frequently to less experienced claimants (eg, small and medium-sized enterprises and consumers), regulation may become desirable.

Courts provide welcome clarity on ship arrest jurisdictional issues
AKD NV
  • Shipping & Transport
  • Netherlands
  • September 13 2017

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.

Supreme Court rules on whether ultimate director can limit liability through foreign legal entity director
AKD NV
  • Litigation
  • Netherlands
  • September 12 2017

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.

Rotterdam Guarantee Form Limitation 2017 introduced
AKD NV
  • Shipping & Transport
  • Netherlands
  • September 06 2017

The Dutch Transport Law Association recently introduced a new standard form to be used for the constitution of a limitation fund in proceedings before the Dutch courts for the limitation of liability in seagoing or inland shipping. In the past, guarantees in limitation proceedings were offered on the basis of widely diverging texts, which often led to disagreement between the interested parties and the need for court rulings on the adequacy of the guarantee.

Courts provide welcome clarity on ship arrest jurisdictional issues
AKD NV
  • Litigation
  • Netherlands
  • September 05 2017

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.

District court refers questions on sale of second-hand e-books to ECJ
AKD NV
  • Litigation
  • Netherlands
  • August 22 2017

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.

District court refers questions on sale of second-hand e-books to ECJ
AKD NV
  • Intellectual Property
  • Netherlands
  • August 21 2017

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.

Corporate power purchase agreements in Dutch electricity market
Stek Advocaten BV
  • Energy & Natural Resources
  • Netherlands
  • July 10 2017

An important global trend is the rapidly increasing number of large industrial and corporate energy consumers and buyers wanting to purchase renewable electricity directly from renewable electricity producers on the basis of long-term corporate power purchase agreements. This has also emerged as a trend in the Dutch energy market, especially in the context of the so-called 'energy transition' initiated by the government and the Energy Accord signed by the government and market players.

Heks'nkaas: an appetising copyright matter
AKD NV
  • Litigation
  • Netherlands
  • June 27 2017

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.