AKD The Netherlands updates

Volume guarantees under transport and logistics contracts
AKD The Netherlands
  • Shipping & Transport
  • Netherlands
  • 27 March 2019

A recent Utrecht District Court decision sends a strong reminder to parties in the transport and logistics industry that they must be precise and clear about what they are agreeing to in dealings with their trading partners. While the less formal requirements for concluding an agreement under Dutch law seem to benefit the transport industry, this decision shows that there are pitfalls to be considered.

Dutch dismissal law in a nutshell
AKD The Netherlands
  • Employment & Benefits
  • Netherlands
  • 13 March 2019

Dutch dismissal law contains certain distinguishing elements which make it unique within Europe. For example, it is based on a dual system, which includes a preventive dismissal assessment. Employers that intend to dismiss employees must be mindful of these unique features. Otherwise, the dismissal attempt may fail, resulting in the nominated employee remaining in the company's employment or the employer paying a higher severance payment to the employee.

Rotterdam court rules in favour of Petrobras investors by accepting jurisdiction
AKD The Netherlands
  • Litigation
  • Netherlands
  • 26 February 2019

The Rotterdam District Court recently assumed jurisdiction over the international securities class action lawsuit against Petrobras Brasileiro SA and others in the Netherlands. The judgment offers valuable insight into how the Dutch courts assess jurisdiction in cross-border collective redress cases. It also illustrates that the Netherlands could act as a collective redress venue in matters relating to events that mainly take place in foreign jurisdictions.

Hema crocodile takes bite out of Lacoste trademark
AKD The Netherlands
  • Litigation
  • Netherlands
  • 19 February 2019

The Hague District Court recently issued a preliminary ruling in which it held that Lacoste could not invoke its famous crocodile trademark in order to prohibit the use of a crocodile motif on children's underwear. This preliminary judgment is one of only a few examples in which the use of a sign has been considered purely decorative (and thus could not be perceived as trademark use). Typically, the courts are restrictive in accepting such a defence.

Employers beware! Right of access to personnel files under GDPR
AKD The Netherlands
  • Employment & Benefits
  • Netherlands
  • 19 December 2018

For most employers, the threat of high fines has been sufficient to encourage them to try and comply with the EU General Data Protection Regulation (GDPR). Now, more than six months after the GDPR's introduction, the question has arisen as to whether employers' concerns in this regard were justified. Recent case law and an incremental penalty imposed by the Dutch Data Protection Authority show that employers should be taking the GDPR seriously when it comes to personnel files.

Amsterdam Court of Appeal declares Fortis settlement binding under WCAM
AKD The Netherlands
  • Litigation
  • Netherlands
  • 18 December 2018

The Amsterdam Court of Appeal recently declared the settlement between Fortis (since renamed Ageas) and multiple claimant organisations binding. The €1.3 billion settlement is the largest of its kind to have been entered into in Europe. It emphasises the usefulness of the Act on Collective Settlement of Mass Claims when resolving cross-border disputes before the Dutch courts, irrespective of whether proceedings on the merits on behalf of the whole class can be litigated on in the Netherlands.

Onus on party seeking to limit liability to provide all information at early stage
AKD The Netherlands
  • Shipping & Transport
  • Netherlands
  • 12 December 2018

A recent decision by the Rotterdam Court regarding a major oil spill in the port of Rotterdam emphasises the importance of assessing at an early stage which liability regime applies when a party seeks to limit its exposure to claims in the event of an oil spill at sea. The court held that in procedures concerning limitation of liability, it is the responsibility of the party seeking to rely on limitation to provide all of the information available at an early stage.

Onus on party seeking to limit liability to provide all information at early stage
AKD The Netherlands
  • Litigation
  • Netherlands
  • 11 December 2018

A recent decision by the Rotterdam Court regarding a major oil spill in the port of Rotterdam emphasises the importance of assessing at an early stage which liability regime applies when a party seeks to limit its exposure to claims in the event of an oil spill at sea. The court held that in procedures concerning limitation of liability, it is the responsibility of the party seeking to rely on limitation to provide all of the information available at an early stage.

adidas knocked out in trademark infringement case: McGregor IP maintains right to use Conor McGregor's name
AKD The Netherlands
  • Litigation
  • Netherlands
  • 27 November 2018

The Hague District Court recently rendered an interim judgment in a matter between Dutch limited liability company McGregor IP BV and adidas. The key question in this case was whether adidas – in using the name of a sports hero on items such as hoodies, shorts and jerseys – had infringed McGregor IP's trademark rights. Notably, the outcome of this matter could have been different had the design and display of the signs at issue been different.

Amsterdam District Court dismisses Fairfield Funds' claim against PwC in relation to Madoff Ponzi scheme
AKD The Netherlands
  • Litigation
  • Netherlands
  • 30 October 2018

The Amsterdam District Court recently rendered its judgment in the proceedings between the liquidator of Fairfield Sentry Limited, Fairfield Sigma Limited and Fairfield Lambda Limited (the Fairfield Funds) against Dutch public limited companies PricewaterhouseCoopers Accountants NV and PricewaterhouseCoopers NV and four accountants affiliated therewith. The proceedings centred on the fraud committed by Bernard Madoff that came to light in 2009, of which the funds had been victims.

Is this the end of traditional employment contracts?
AKD The Netherlands
  • Employment & Benefits
  • Netherlands
  • 10 October 2018

According to the European Commission, the growth of flexible contracts in the Dutch labour market, as well as the inequality between flexible contracts and employment contracts for indefinite periods, is a problem. As such, one of the commission's recommendations for the Dutch government is to tackle the barriers to entering into traditional contracts or employment contracts for indefinite periods and facilitate the transition from definite contracts to employment contracts for indefinite periods.

Heks'nkaas: advocate general's opinion on copyrighting tastes unpalatable for Levola
AKD The Netherlands
  • Litigation
  • Netherlands
  • 25 September 2018

In May 2017 the Arnhem-Leeuwarden Appellate Court referred questions regarding which kinds of object can be classified as copyrightable works to the European Court of Justice (ECJ). The case addresses the interesting question of whether certain tastes can be protected under copyright law (the specific taste for which protection was sought was Levola's popular cheese product Heks'nkaas). Advocate General Wathelet recently advised the ECJ not to allow tastes to be granted copyright protection.

Supreme Court confirms right to limit liability
AKD The Netherlands
  • Litigation
  • Netherlands
  • 21 August 2018

The Supreme Court has reconfirmed the right to limit liability under Dutch law, even in personal injury cases. It held that limitation as such is not a violation of the human right to protection of property under the First Protocol to the European Convention on Human Rights, and that it is nationally and internationally considered necessary that the liability of the carrier is limited or may be limited in the event of a passenger's death or personal injury.

Supreme Court further clarifies scope of 'main proceedings' for pre-judgment attachments in cross-border disputes
AKD The Netherlands
  • Litigation
  • Netherlands
  • 14 August 2018

The Dutch courts have jurisdiction to grant permission for pre-judgment attachment on assets that are located in the Netherlands, even if the debtor is foreign and the Dutch courts have no jurisdiction in the main proceedings. A recent Supreme Court decision has provided further guidance on which (foreign) court actions can be considered 'main proceedings' within the meaning of the Code of Civil Procedure and at what time the creditor must be deemed to have instituted these main proceedings.

Supreme Court confirms right to limit liability
AKD The Netherlands
  • Shipping & Transport
  • Netherlands
  • 08 August 2018

The Supreme Court has reconfirmed the right to limit liability under Dutch law, even in personal injury cases. It held that limitation as such is not a violation of the human right to protection of property under the First Protocol to the European Convention on Human Rights, and that it is nationally and internationally considered necessary that the liability of the carrier is limited or may be limited in the event of a passenger's death or personal injury.

Can directors be held liable for IP infringements?
AKD The Netherlands
  • Litigation
  • Netherlands
  • 07 August 2018

The Hague District Court recently had to assess whether a natural person could be held accountable for a company's trademark and copyright infringement. Although the court could not establish whether the person was an official director of the infringing company, this did not stand in the way of his liability. In accordance with Supreme Court case law, liability can arise where a party plays a substantial part in the policy of a company that acts unlawfully and behaves as if they are a director of the company.

Netherlands prepares to adopt Rotterdam Rules
AKD The Netherlands
  • Shipping & Transport
  • Netherlands
  • 01 August 2018

With two bills recently submitted to Parliament, the Netherlands is preparing to adopt the United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea (the Rotterdam Rules) into Dutch law. This legislative effort is a clear sign of support in respect of the rules and will be appreciated by those convinced that the rules are the way forward for the carriage of goods in this age of e-commerce.

Agenda setting: Supreme Court clarifies shareholders' rights for general meetings
AKD The Netherlands
  • Litigation
  • Netherlands
  • 12 June 2018

The Supreme Court recently clarified the scope of shareholders' rights under the Civil Code with regard to (non-binding) voting items on general meeting agendas. Under Dutch corporate law, shareholders have the right to request the board of directors of a public or private limited company to put an item on the agenda of a shareholders' meeting if the threshold and timing requirements are met. Such requests may be refused by the board of directors only in exceptional circumstances.

Dutch court rules that tank storage provider cannot invoke exoneration clause contained in VOTOB conditions
AKD The Netherlands
  • Shipping & Transport
  • Netherlands
  • 16 May 2018

The Rotterdam District Court recently ruled that a tank storage provider could not invoke the exoneration clause of the General Conditions for Tank Storage in the Netherlands (the VOTOB conditions), which are frequently used by Dutch tank terminals and storage companies. The decision is relevant, as it appears to contravene the rather strict approach adopted in Dutch case law in relation to successfully setting aside a VOTOB exoneration clause.

Dutch court rules that tank storage provider cannot invoke exoneration clause contained in VOTOB conditions
AKD The Netherlands
  • Litigation
  • Netherlands
  • 15 May 2018

The Rotterdam District Court recently ruled that a tank storage provider could not invoke the exoneration clause of the General Conditions for Tank Storage in the Netherlands (the VOTOB conditions), which are frequently used by Dutch tank terminals and storage companies. The decision is relevant, as it appears to contravene the rather strict approach adopted in Dutch case law in relation to successfully setting aside a VOTOB exoneration clause.

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