AKD updates

A year of insights: new regime for collective redress one year in action
AKD
  • Litigation
  • Netherlands
  • 16 March 2021

In 2020 the Act on Redress of Mass Damages in Collective Action (WAMCA) entered into force. The WAMCA builds on the well-established Dutch collective redress mechanisms that have been in effect since 1994. This article discusses the numerous developments in various ongoing WAMCA proceedings, whether the WAMCA has (already) delivered on its promise to be the next step in the progressive class action climate of the Netherlands and the opportunities and challenges that could be expected.

Theft of luxury watches from storage raises questions over carrier liability
AKD
  • Litigation
  • Netherlands
  • 19 January 2021

An armed robbery at a warehouse provided the basis for an unfortunate – but legally interesting – recent case in the Amsterdam Court of Appeal. The case raised the question of whether the carrier could be held liable for the loss of the goods and, if so, whether it could invoke the limitations of liability applicable to carriers. In this regard, the court also examined whether storage formed an independent part of the contract or whether it was absorbed into carriage.

Theft of luxury watches from storage raises questions over carrier liability
AKD
  • Shipping & Transport
  • Netherlands
  • 13 January 2021

An armed robbery at a warehouse provided the basis for an unfortunate – but legally interesting – recent case in the Amsterdam Court of Appeal. The case raised the question of whether the carrier could be held liable for the loss of the goods and, if so, whether it could invoke the limitations of liability applicable to carriers. In this regard, the court also examined whether storage formed an independent part of the contract or whether it was absorbed into carriage.

How to catch evidence in Dutch civil procedures without fishing expeditions
AKD
  • Litigation
  • Netherlands
  • 12 January 2021

In the Netherlands the general discovery trial is an unknown phenomenon. However, certain documents may be obtained pursuant to Article 843a of the Code of Civil Procedure. If all of the relevant requirements are met and no restrictive grounds apply, the court will allow the claim for disclosure of a copy, extract or inspection of the requested documents. This article outlines how this procedure works.

Litigation Chamber rules on validity of employee consent under GDPR
AKD
  • Tech, Data, Telecoms & Media
  • Belgium
  • 11 December 2020

The Litigation Chamber of the Data Protection Authority (DPA) recently provided welcome clarifications concerning the validity of employee consent. The DPA decided that the free consent of employees was possible and could be valid if all other conditions of Article 4.11 of the EU General Data Protection Regulation were fulfilled and that the data was collected for a specified and legitimate purpose but the purpose of the processing was not explicit.

Amsterdam Court of Appeal overturns Max Verstappen's victory
AKD
  • Litigation
  • Netherlands
  • 08 December 2020

The Amsterdam Court of Appeal recently overturned the victory obtained by Formula 1 driver Max Verstappen before the Amsterdam District Court in a dispute concerning his portrait rights. The matter in question concerned the use of a Verstappen lookalike in a video ad. The appeal court's decision appears to have opened up the possibility of using lookalikes for parody purposes – even in ads. Nonetheless, parties should tread carefully, as much depends on the circumstances of the case.

Amsterdam Court of Appeal overturns Max Verstappen's victory
AKD
  • Intellectual Property
  • Netherlands
  • 07 December 2020

The Amsterdam Court of Appeal recently overturned the victory obtained by Formula 1 driver Max Verstappen before the Amsterdam District Court in a dispute concerning his portrait rights. The matter in question concerned the use of a Verstappen lookalike in a video ad. The appeal court's decision appears to have opened up the possibility of using lookalikes for parody purposes – even in ads. Nonetheless, parties should tread carefully, as much depends on the circumstances of the case.

Validity of NCC and NCCA clauses
AKD
  • Litigation
  • Netherlands
  • 03 November 2020

Since 2019 it has been possible to bring international, civil and commercial disputes before the Netherlands Commercial Court (NCC) and the Netherlands Commercial Court of Appeal (NCCA). All litigation is conducted in English, which is a huge plus for foreign parties. The NCC will take on a case if certain conditions are met. A recent NCC ruling has provided more clarity on the condition that parties must expressly agree in writing to litigate in English before the NCC or the NCCA.

London arbitral award not enforced in Netherlands
AKD
  • Litigation
  • Netherlands
  • 29 September 2020

Charterparties commonly contain an arbitration clause. One of the perceived advantages of arbitration over litigation is the worldwide recognition and enforceability of arbitral awards on the basis of the New York Convention. However, a recent ruling by the Supreme Court should serve as a warning to those considering inserting an arbitration clause in their contracts with a view to seeking subsequent enforcement in the Netherlands.

Court rejects preliminary attempt to enforce dockers' clause
AKD
  • Shipping & Transport
  • Netherlands
  • 23 September 2020

The effort to make lashing a cargo-handling activity rather than a crew activity is set out in the so-called 'dockers' clause', contained in collective agreements covering some 15,000 seagoing vessels worldwide. A recent decision by the Rotterdam Court rejected the claimants' request to immediately prohibit lashing by seafarers in advance of the results of main proceedings. The court also raised the possibility that the clause could prove to be against the principles of reasonableness and fairness, as well as anti-competitive.

DPA reprimands hospital for violating employee's access and information rights
AKD
  • Tech, Data, Telecoms & Media
  • Belgium
  • 18 September 2020

The Litigation Chamber of the Data Protection Authority recently issued a reprimand to a hospital for its violation of an employee's access and information rights regarding an audit, which had led to the employee's dismissal. Specifically, the hospital had refused the employee access to the external expert's audit report which had formed the basis of its decision to dismiss the employee.

London arbitral award not enforced in Netherlands
AKD
  • Shipping & Transport
  • Netherlands
  • 09 September 2020

Charterparties commonly contain an arbitration clause. One of the perceived advantages of arbitration over litigation is worldwide recognition and enforceability of arbitral awards on the basis of the New York Convention. However, a recent ruling by the Supreme Court should serve as a warning to those considering inserting an arbitration clause in their contracts with a view to seeking subsequent enforcement in the Netherlands.

Temporary Deferral of Payments Act 2020 introduced to protect companies from bankruptcy
AKD
  • Litigation
  • Netherlands
  • 04 August 2020

Despite the impact of the COVID-19 outbreak on legal matters and company wellbeing, creditors still have the same remedies at their disposal to recover unpaid debts and the Dutch courts are generally handling bankruptcy petitions and requests for pre-judgment attachment in the same way. However, this will likely change soon, as in June 2020 the minister for legal protection published a preliminary draft of the Temporary Deferral of Payments Act 2020 for online consultation.

Appeal court finds that carrier had strengthened obligation to furnish facts in CMR claim
AKD
  • Shipping & Transport
  • Netherlands
  • 15 July 2020

The Netherlands has historically been a friendly jurisdiction for Convention on the Contract for the International Carriage of Goods by Road (CMR) carriers. However, there are some exceptions. In certain circumstances, a claimant may be able to rely on a carrier's 'strengthened obligation to furnish facts'. The Den Bosch Appeal Court recently held that a CMR carrier had such a strengthened obligation in order to enable the claimant to meet its burden of proof regarding (the fault equivalent of) wilful misconduct.

Court rules that 'fear of loss' does not constitute damage under CMR
AKD
  • Litigation
  • Netherlands
  • 14 July 2020

Under the Convention on the Contract for the International Carriage of Goods by Road (CMR), carriers are liable for the total or partial loss of goods or damage to goods that occurs between the carrier taking charge of the goods and delivery. The Court of Amsterdam recently held that the word 'damage' in the relevant sections of the CMR presumes substantial physical change to the state of the goods and ruled out, in this case, that a broken seal on a container represented damage.

Court rules that 'fear of loss' does not constitute damage under CMR
AKD
  • Shipping & Transport
  • Netherlands
  • 08 July 2020

Under the Convention on the Contract for the International Carriage of Goods by Road (CMR), carriers are liable for the total or partial loss of goods or damage to goods that occurs between the carrier taking charge of the goods and delivery. The Court of Amsterdam recently held that the word 'damage' in the relevant sections of the CMR presumes substantial physical change to the state of the goods and ruled out, in this case, that a broken seal on a container represented damage.

Use of customs information in relation to parallel imports
AKD
  • Litigation
  • Netherlands
  • 07 July 2020

The Hague District Court recently had to answer the question of whether information acquired during a customs seizure under the EU Anti-piracy Regulation may be used for an unauthorised parallel import claim. The regulation provides an effective means and procedure for IP rights holders to request Customs to intercept consignments suspected of containing counterfeit or pirated goods and to have said goods destroyed.

Use of customs information in relation to parallel imports
AKD
  • Intellectual Property
  • Netherlands
  • 06 July 2020

The Hague District Court recently had to answer the question of whether information acquired during a customs seizure under the EU Anti-piracy Regulation may be used for an unauthorised parallel import claim. The regulation provides an effective means and procedure for IP rights holders to request Customs to intercept consignments suspected of containing counterfeit or pirated goods and to have said goods destroyed.

DPA fines social media platform for data processing during referral programme
AKD
  • Tech, Data, Telecoms & Media
  • Belgium
  • 03 July 2020

The Belgian Protection Authority (DPA) recently fined a social media platform €50,000 for processing personal data during the scope of a referral programme without an appropriate legal basis. This decision is particularly relevant because it was rendered on the basis of the one-stop-shop mechanism and all of the national authorities concerned validated the DPA's reasoning.

Debt collection during COVID-19
AKD
  • Litigation
  • Netherlands
  • 02 June 2020

The COVID-19 outbreak is greatly affecting legal matters and company wellbeing. Some companies can no longer comply with their contractual obligations, while others have become financially distressed. To ensure that creditors do not make improper use of the measures available to collect a debt or ensure recourse, the question has arisen as to whether the courts should change the way in which they assess such measures.