What Constitutes Express Agreement for Valid Jurisdiction?
By Michiel Teekens, TeekensKarstens advocaten notarissen
The Netherlands Commercial Court (NCC) is a specific branch of the Amsterdam Court and Amsterdam Court of Appeal, and focuses on international commercial disputes. These include summary proceedings and main proceedings. Proceedings and judgments are in the English language. Like arbitration institutes, the jurisdiction of the NCC is dependent on an express agreement by parties.
In its summary judgement of 14 April 2020 (ECLI:NL:RBAMS:2020:2277), the NCC provided helpful insights as to what can constitute an express agreement to ensure NCC jurisdiction.
The NCC ruled that article 30r Dutch Code of Civil Procedure does not impose any requirement to the effect that an NCC clause is valid only if included in a document signed by the parties. The requirement of an “express” agreement is met where the parties’ agreement in favour of NCC is clearly stated, was made with knowledge of the clause, and was not hidden in one party’s general terms and conditions. In the Court’s preliminary analysis, a reasonable person in the same circumstances as the motion defendant would have understood the documents to mean that disputes in connection with a letter of intent and a transaction agreement should be brought before the NCC. The NCC stipulates that the NCC clause is separate from the main agreement in which it is included, reflecting that parties can agree to a NCC clause before the main agreement is in agreed form.
In this case the motion claimant made numerous statements which, on a preliminary basis, warrant the conclusion that there was agreement on the NCC clause. Although in this case there was a formal requirement to enter into the transaction (“execute” and “deliver”) including an entire agreement clause, these points only had little weight in the analysis by the NCC. The judgment shows that not only is the wording of the NCC clause relevant, but also the question of at what stage it becomes binding.
Michiel TeekensGGI member firm
TeekensKarstens advocaten notarissen
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TeekensKarstens advocaten notarissen (TK) is a full service Dutch law firm with extensive experience in the field of international law. TK has established specific international teams to provide international clients with tailor-made services and information.
Michiel Teekensis a Partner with TeekensKarstens advocaten notarissen (TK). He is an international corporate and commercial litigator and Chair of the International Law team of experts in TK. He also serves as Global Chair of the GGI Litigation & Dispute Resolution (LDR) Practice Group.
Published: Litigation & Dispute Resolution Newsletter, No. 14, Spring 2021 l Photo: Sjaak - stock.adobe.com