Litigation, Netherlands updates

Agenda setting: Supreme Court clarifies shareholders' rights for general meetings
AKD NV
  • Netherlands
  • June 12 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 NV
  • Netherlands
  • May 15 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 underlines arrestors' rights
AKD NV
  • Netherlands
  • May 08 2018

​The Dutch courts recently confirmed that a party which is arresting a vessel has no obligation to pay berth fees or any other associated costs during the period that the vessel remains under arrest. This decision is notable, as although it is in line with the traditional understanding, it is one of few decisions to have been issued on this matter in the Netherlands. It will also likely be regarded with interest in other jurisdictions, where different rules concerning the obligations of arresting parties apply.

Dismissal of statutory director terminates management agreement by operation of law
AKD NV
  • Netherlands
  • April 24 2018

More than 10 years ago, the Supreme Court handed down the so-called 'April 15 rulings', which imply that a resolution of a shareholders' meeting dismissing a statutory director who has an employment agreement with the company also terminates the agreement by operation of law. This led to confusion as to whether a corporate dismissal resolution would result in the termination of a management agreement where such an agreement existed. The Limburg District Court recently ruled on this matter.

Supreme Court rules on determination of LLMC claims
AKD NV
  • Netherlands
  • April 17 2018

The Supreme Court recently ruled on how to determine which claims under the Convention on Limitation of Liability for Maritime Claims 1976 are paid out of the property fund and which are paid out of the wreck fund if a party has chosen to constitute both funds. The judgment is particularly relevant because the Netherlands recently issued a legislative proposal which aims to abolish the wreck fund and introduced unlimited liability for wreck and cargo removal claims.

Netherlands courts to enhance international appeal
AKD NV
  • Netherlands
  • April 03 2018

The generally favourable treatment received by international parties to commercial disputes when litigating in the Netherlands was strengthened in March 2018 when the House of Representatives accepted a legislative proposal to institute a Netherlands Commercial Court and a Netherlands Commercial Court of Appeal. For the first time in the Netherlands, it may now become possible for oral and written proceedings to be conducted, and court judgments to be delivered, entirely in English.

More restraint required in granting permission for pre-judgment seizure
AKD NV
  • Netherlands
  • March 20 2018

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.

Yacht damage dispute clarifies product liability implications under EU directive
AKD NV
  • Netherlands
  • January 23 2018

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.

Fact(or) finding: locating pure financial damage in cross-border securities class actions
AKD NV
  • 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
  • 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.

Logistics service providers must be clear on general terms and conditions
AKD NV
  • 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.

Scope of protection of descriptive trade names
AKD NV
  • 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.

Can you prevent pre-judgment garnishment by receiver of D&O insurance?
AKD NV
  • 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.

Supreme Court rules on whether ultimate director can limit liability through foreign legal entity director
AKD NV
  • 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.

Courts provide welcome clarity on ship arrest jurisdictional issues
AKD NV
  • 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
  • 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.

Heks'nkaas: an appetising copyright matter
AKD NV
  • 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.

Rotterdam District Court rules on status of on-board cargo damage survey
AKD NV
  • Netherlands
  • June 20 2017

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.

Hague Appeal Court upholds ruling on Article 11 of Convention on Limitation of Liability for Maritime Claims
AKD NV
  • Netherlands
  • May 09 2017

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.

Updated indicative tariffs for compensation of legal costs in IP cases – ex officio review by courts
AKD NV
  • Netherlands
  • May 02 2017

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.

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