AKD NV

Rotterdam

AKD is one of the largest law firms in the Netherlands. With a team of 230 committed lawyers, civil-law notaries and tax lawyers, AKD delivers high quality legal services and tax matters in nearly all legal fields, based on a full-service approach. Our client base varies from very large multinational companies to stock-listed Dutch entities, from large corporates to family owned businesses, from financial institutions to municipalities and hospitals.

Updates

Company & Commercial

Distributions of profits to shareholders under corporate law
Netherlands | 29 January 2018

A Dutch private limited company can make distributions of profits to its shareholders if the company's capital exceeds the aggregate of the reserves that must be maintained pursuant to the law and the company's articles of association. If a company cannot pay its due and payable debts after a distribution, the members of the board of directors can be held liable to for any resulting shortfall and the company's bankruptcy trustee can claim and recover the amount wrongfully paid from each shareholder.

Employment & Benefits

Is this the end of traditional employment contracts?
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.

Healthcare & Life Sciences

For-profit hospital care: don't hold your breath
Netherlands | 10 October 2018

For-profit hospital care is a toxic political subject. Those in favour will achieve no political gain by fighting for it, while those opposed can easily cash in on the sentiment or conviction that healthcare is best provided if financial motives are neutralised. Nonetheless, the current administration is carefully reviving the discussion about for-profit healthcare. However, given the current political landscape, prolonging the regulatory twilight zone seems the most likely outcome.

New government measures aim to keep medicines affordable
Netherlands | 01 August 2018

The minister for medical care recently announced a set of measures to control the rising costs of pharmaceutical drugs, which – without action – are forecast to rise by at least 10% annually. The measures aim to guarantee patient accessibility to medicines and the affordability of care in the long term. The minister estimates that the measures will save the country €467 million per year by 2022.

Electronic exchange of patient data: consent in view of Supreme Court decision, GDPR and future regulations
Netherlands | 20 June 2018

In 2011 the Senate rejected the legislative proposal to establish a mandatory electronic patient record. Subsequently, various national professional associations recommenced the initiative in a different (optional) form, using the already developed nationwide infrastructure for the electronic exchange of personal medical data. The Association of General Practitioners petitioned the courts to prohibit the new initiative. However, the Supreme Court recently allowed it on the basis of present legislation.

Inducement ban regarding medical devices
Netherlands | 28 March 2018

The Medical Devices Act was recently amended to include a provision that bans improper inducements aimed at stimulating the prescription or supply of medical devices on the basis of undesirable financial incentives. The aim of the amendment is to give patients more trust that healthcare professionals make decisions concerning certain devices based on legitimate grounds relating to patient care.

Intellectual Property

Heks'nkaas: advocate general's opinion on copyrighting tastes unpalatable for Levola
Netherlands | 24 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.

Can directors be held liable for IP infringements?
Netherlands | 06 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.

The considerable value of Max Verstappen's likeness
Netherlands | 18 June 2018

The Amsterdam District Court recently allowed a substantial damages claim following Dutch grocery delivery start-up Picnic's unlawful use of a lookalike of the famous Formula 1 driver Max Verstappen. This case clarifies that a person's right to control the use of their image cannot be violated easily. Although the parody defence is useful, the chance of success is limited if the parody is made in order to achieve commercial gain.

Benelux Convention on Intellectual Property amendments: what do they mean for Dutch trademark holders?
Netherlands | 16 April 2018

On June 1 2018 two protocols that amend the Benelux Convention on Intellectual Property will take effect. The amendments will make it possible for Dutch parties to initiate actions before the Benelux Office for Intellectual Property with regard to the opposition, revocation and cancellation of a Benelux trademark. They will therefore have a significant effect on Dutch revocation and cancellation procedures.

Supreme Court rules on use and functions of trademark
Netherlands | 12 February 2018

The Supreme Court has upheld an opposition against the refilling of a gas tank bearing the trademark PRIMAGAZ with gas from a third party. The Supreme Court held that where a party uses another's branded packaging for its own goods, it is the same as using the other party's trademark. Finding that the act of filling the tank constituted use of the mark in the course of trade, the court held that the third party had used the PRIMAGAZ mark for commercial gain.

Supreme Court sets standards for direct and indirect infringement of Swiss-type claims
Netherlands | 04 December 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.

Scope of protection of descriptive trade names
Netherlands | 23 October 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.

District court refers questions on sale of second-hand e-books to ECJ
Netherlands | 21 August 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
Netherlands | 26 June 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.

Updated indicative tariffs for compensation of legal costs in IP cases – ex officio review by courts
Netherlands | 01 May 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.

Fictive ownership of copyright: rights of use under Copyright Contracts Act
Netherlands | 27 February 2017

The Rotterdam District Court recently rendered its judgment in a matter between two parties that had jointly run a food truck. After having gone their separate ways, the food truck owner continued to operate the business. When the other party continued to use the business's name and logo, the food truck owner demanded that it cease to do so and commenced proceedings to that effect. This seemingly small case is noteworthy, as it demonstrates the consequences of copyright mismanagement.

ECJ rules that Dutch libraries' e-lending falls within scope of EU Rental and Lending Rights Directive
Netherlands | 19 December 2016

The European Court of Justice (ECJ) recently rendered its judgment in the dispute between Vereniging Openbare Bibliotheken and Stichting Leenrecht, which had been referred to it by the Hague District Court. The ECJ considered whether the lending of electronic books by Dutch public libraries falls within the scope of the EU Rental and Lending Rights Directive and is covered by the existing public lending rights regime under the Dutch Copyright Act.

Hyperlink to infringing content may constitute copyright infringement
Netherlands | 24 October 2016

The European Court of Justice (ECJ) recently ruled that hyperlinking to protected works which are freely available on another website without the consent of the copyright holder may be regarded as communication to the public and thus constitute copyright infringement. The ECJ considered that hyperlinking to infringing works constitutes infringement on the condition that the hyperlinker knew or ought to have known the illegal nature of the publication of those works on another website.

No copyright protection for famous Bavaria slogan
Netherlands | 08 August 2016

A Dutch brewing company recently claimed that an internet service provider (ISP) had sought to capitalise on the reputation of its trademarks and benefit from the power of attraction, reputation and prestige of its mark. However, the claims were denied on the basis that the company failed to substantiate the negative effects that the ISP's use of a similar slogan had had on both its mark's distinctive character and its reputation.

Clarification on features of design 'solely dictated' by technical function
Netherlands | 23 May 2016

The EU Community Design Regulation provides that "a Community design shall not subsist in features of appearance of a product that are solely dictated by its technical function". The Court of Appeal of The Hague recently delivered a judgment interpreting when a feature of a model breaches this requirement. The court also suggested that implicit obligations against placing confusing products on the market can arise from a contractual relationship.

The portrait of Johan Cruijff
Netherlands | 18 April 2016

Johan Cruijff, the most well-known Dutch soccer player, recently passed away. Aside from his legacy as a professional football player, Cruijff also had a significant impact on Dutch copyright law when he challenged the publication of his image on the ground of commercial interest. In a fundamental ruling, the Supreme Court ruled that in some circumstances, public figures are entitled to a reasonable fee for the commercial use of their portrait.

Assessing the real risk of market partitioning and the burden of proof
Netherlands | 15 February 2016

A recent interlocutory judgment on assessing the real risk of market partitioning in an unauthorised parallel import case examined the rationale for reversing the burden of proof and whether the risk of partitioning assessment should take place retroactively or not. Rights holders will welcome the judgment because of the high standard it sets for what evidence qualifies as proof of a real risk of market partitioning.

Communication to the public: how much involvement is required?
Netherlands | 14 December 2015

The Supreme Court has referred another question to the European Court of Justice regarding 'communication to the public' as defined by the EU Infosoc Directive. The referral concerns a dispute between anti-piracy association the BREIN Foundation and two internet service providers hosting the notorious online index of digital content, The Pirate Bay.

Hyperlinks and copyright: courts seek ECJ guidance
Netherlands | 16 November 2015

The relationship between hyperlinking and copyright has been the subject of various court judgments. The outcome of such cases depends on the accessibility of the content, whether the content was uploaded lawfully, whether the link qualifies as a communication to the public and whether the rights holder's permission was obtained. Dutch courts recently made two new references to the European Court of Justice on this issue.

Stolichnaya vodka battle continues: unlawful facilitation of infringement by distributors
Netherlands | 31 August 2015

The latest dispute between Russian state-owned company FKP Sojuzplodoimport and Dutch company Spirits International concerned alleged trademark infringement by Spirits International by using the trademark STOLI for vodka in Benelux. Dutch case law on the issue of unlawful facilitation of trademark infringement is scarce, but in this decision the District Court of The Hague gave some further guidance on the topic.

Copyright Contract Law comes into force
Netherlands | 03 August 2015

The new Copyright Contract Law was recently inserted into the Copyright Act 1912. The amendment aims to strengthen the position of authors, particularly in relation to parties which exploit their works (eg, publishers, film producers and record companies). The new law requires a signed deed in relation to exclusive licences, as well as introducing a section on exploitation contracts into the act.

Amsterdam District Court denies authority for seizure of Community trademark
Netherlands | 08 June 2015

The Amsterdam District Court recently decided that it was not authorised to grant permission to seize trademarks registered as a Community trademark before the Office for Harmonisation in the Internal Market (OHIM). The court argued that, as OHIM has its seat in Alicante, Spain (ie, outside the Netherlands), the trademarks were outside the court's remit and it therefore had no authority to grant permission for seizure.

Supreme Court orders full assessment of AFC Ajax shirt
Netherlands | 09 March 2015

In a case examining whether Dutch football club AFC Ajax's trademarks in its club strip were infringed, the Supreme Court has held that the appeal court failed to carry out a full assessment of the similarity of the marks. Such an assessment of the likelihood of confusion may be skipped only where there is no similarity between the earlier mark and the challenged mark.

Screenscrapers, database rights and contract law
Netherlands | 16 February 2015

The recent case of Ryanair v PR Aviation concerned the collection of information that did not meet the specific requirements for database protection under the EU Database Directive. This raises the question of whether a database owner should seek to avoid qualifying for protection under the directive - for example, by downplaying the investments or the creative choices it has made in creating the database.

International Trade

Failure to observe customs rules could have costly implications
Netherlands | 12 October 2018

The Dutch customs authorities have wide-ranging inspection powers and, once irregularities have been uncovered, parties with cargo interests may face severe delays and ensuing costs which could have been avoided had they had a better understanding of the relevant rules and regulations. Parties which violate the rules will be subject to legal enforcement proceedings and possible prosecution under criminal law in the event of the Public Prosecutor's Office's involvement.

Litigation

Heks'nkaas: advocate general's opinion on copyrighting tastes unpalatable for Levola
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
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
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.

Can directors be held liable for IP infringements?
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.

Agenda setting: Supreme Court clarifies shareholders' rights for general meetings
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
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.

Dutch court underlines arrestors' rights
Netherlands | 08 May 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
Netherlands | 24 April 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
Netherlands | 17 April 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
Netherlands | 03 April 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
Netherlands | 20 March 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
Netherlands | 23 January 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
Netherlands | 12 December 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
Netherlands | 05 December 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
Netherlands | 14 November 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
Netherlands | 24 October 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?
Netherlands | 17 October 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
Netherlands | 12 September 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
Netherlands | 05 September 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
Netherlands | 22 August 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
Netherlands | 27 June 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
Netherlands | 20 June 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
Netherlands | 09 May 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
Netherlands | 02 May 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.

ECJ advocate general rules on drivers' weekly rest periods
European Union | 07 March 2017

The extent to which sleeping in vehicles is allowed under EU law has been the subject of much debate in the road transportation industry. EU employers of drivers of road transport vehicles will have noted with interest the European Court of Justice (ECJ) advocate general's recent opinion that drivers cannot take their regular weekly rest periods inside their vehicles. Although it may be several months before the ECJ reaches a decision on this issue, the court usually follows the advocate general's advice.

Court rules on fictive ownership of copyright
Netherlands | 28 February 2017

The Rotterdam District Court recently rendered its judgment in a matter between two parties that had jointly run a food truck. After having gone their separate ways, the food truck owner continued to operate the business. When the other party continued to use the business's name and logo, the food truck owner demanded that it cease to do so and commenced proceedings to that effect.

Landmark Dutch CMR rulings also apply to rail carriage liability
Netherlands | 17 January 2017

Dutch case law regarding the interpretation of the Uniform Rules Concerning the Contract of International Carriage of Goods by Rail (CIM) is limited. By contrast, the Supreme Court has produced a rich body of case law on the interpretation of the Convention on the Contract for the International Carriage of Goods by Road (CMR). The Rotterdam court recently held that two landmark Supreme Court rulings on liability under the CMR also apply to rail carriage liability under the CIM.

New EAPO Regulation facilitates preservation of EU bank accounts
European Union | 20 December 2016

EU Regulation 655/2014 establishing a European account preservation order (EAPO) procedure will enter into force in January 2017, providing creditors with the opportunity to attach bank accounts throughout the European Union on the basis of a single application. The EAPO Regulation was driven by a European Commission study which showed that creditors encounter many difficulties when collecting outstanding claims in cases with cross-border implications.

ECJ rules on competence of Dutch court based on Recast Brussels Regulation
Netherlands | 01 November 2016

Under the Recast Brussels Regulation, where a claim is based on an unlawful act, the court of the place where the harmful event occurred has competence. However, determining the place where the harmful event occurred can lead to disputes. In a recent decision, the European Court of Justice emphasised that the jurisdiction of the courts at the place where the harmful event occurred is a rule of special jurisdiction which must be interpreted independently and strictly.

Amsterdam court authorises EU ship arrest order
Netherlands | 18 October 2016

In a recent decision which authorised the arrest of a vessel in four EU jurisdictions, the Amsterdam court reconfirmed that the Netherlands will not hesitate to attach assets throughout the European Union under the recently revised Brussels I Regulation. The decision strengthens the perception of the Netherlands as a ship arrest haven by demonstrating that a Dutch arrest order could provide a solution for creditors seeking to attach assets throughout the European Union.

Global limitation of liability and claims for salvage costs
Netherlands | 23 August 2016

Two recent decisions from the Court of Appeal of The Hague have highlighted the issue of which claims fall under Articles 2(d) and (e) of the Convention on Limitation of Liability for Maritime Claims (LLMC). In both cases, barge and cargo owners claimed salvage costs against the owners of seagoing vessels, which sought to limit their liability under the LLMC.

Liability of CMR carriers in addition to liability under CMR Convention
Netherlands | 16 August 2016

The Arnhem-Leeuwarden Court of Appeal recently ruled that carriers can be held liable under national law for damage to goods during discharge. The decision adds to the body of case law on the liability of Convention on the Contract for the International Carriage of Goods by Road (CMR) carriers, in addition to their liability under the CMR convention.

Clarification on features of design 'solely dictated' by technical function
Netherlands | 24 May 2016

The EU Community Design Regulation provides that "a Community design shall not subsist in features of appearance of a product that are solely dictated by its technical function". The Court of Appeal of The Hague recently delivered a judgment interpreting when a feature of a model breaches this requirement. The court also suggested that implicit obligations against placing confusing products on the market can arise from a contractual relationship.

Supreme Court rules on parent company liability for creditor damages
Netherlands | 15 March 2016

The Supreme Court recently ruled on whether a parent that has guaranteed the commitments entered into by the subsidiary undertaking will be liable for all of the damages suffered by a creditor through a breach of contract by the subsidiary if the creditor has granted the subsidiary full and final discharge in that regard.

Netherlands Commercial Court to launch next year
Netherlands | 16 February 2016

The Dutch courts recently decided to establish a new division within the judicial system: the Netherlands Commercial Court (NCC). The new court is intended to meet high demand from the business community for an international commercial court based in the Netherlands. The NCC judges will be specialised in international trade law and the court will apply Dutch civil procedural law.

Rotterdam Court takes wider view of injunctive relief
Netherlands | 12 January 2016

In a recently published judgment the Rotterdam Court has confirmed that, following a charterparty hire dispute, claimants can obtain speedy injunctive relief in respect of damages, including when parties have agreed on arbitration abroad and arbitration proceedings have already commenced.

ECJ answers jurisdiction questions in director liability case
Netherlands | 08 December 2015

In 2014, in a case involving director liability, the Dutch Supreme Court referred three questions on the application of the EU Brussels I Regulation to the European Court of Justice. The questions concerned matters of international jurisdiction in a case between a Dutch company and its director who lived in Germany and performed his management activities from there. The ECJ has now answered these questions.

"Freeze!" Obtaining pre-judgment attachments
Netherlands | 24 November 2015

The Dutch legal system for pre-judgment attachments is simple, fast, inexpensive and effective. A Dutch preliminary relief judge has jurisdiction to grant pre-judgment attachments even if the debtor is a foreigner and the Dutch courts do not have jurisdiction in the main proceedings. In certain cases, a pre-judgment attachment on assets can even create jurisdiction for the Dutch courts to rule on the merits.

Hyperlinks and copyright: courts seek ECJ guidance
Netherlands | 17 November 2015

The relationship between hyperlinking and copyright has been the subject of various court judgments. The outcome of such cases depends on the accessibility of the content, whether the content was uploaded lawfully, whether the link qualifies as a communication to the public and whether the rights holder's permission was obtained. Dutch courts recently made two new references to the European Court of Justice on this issue.

Rotterdam court holds that Incoterms is no guarantee on court jurisdiction
Netherlands | 08 September 2015

The Rotterdam District Court recently ruled that it lacked authority to hear a dispute between the buyer and seller of an item of machinery transported from Germany to the Netherlands, holding that the actual place of delivery was outside its jurisdiction. It follows that the mere mention in Incoterms of a specific city is by no means a guarantee that a dispute will be heard by a court in that city.

International sales contract law not decisive in proprietary disputes
Netherlands | 11 August 2015

A recent judgment of the 's-Hertogenbosch Court of Appeal confirmed the principle that the law governing an international sales contract is not decisive for determining questions of proprietary law. This is one of the first decisions of a Dutch appeal court involving the specific conflict of laws provisions in Book 10 of the Civil Code.

No more Mr Nice Guy! Collecting claims through bankruptcy filings in court
Netherlands | 28 July 2015

It is often difficult to collect undisputed claims from foreign debtors through the courts. However, under Dutch law, claims against Netherlands-based debtors can be collected through bankruptcy filings. This has become increasingly popular in Dutch legal practice and the traditional method of collecting claims through a normal court case is losing ground.

Amsterdam District Court denies authority for seizure of Community trademark
Netherlands | 09 June 2015

The Amsterdam District Court recently decided that it was not authorised to grant permission to seize trademarks registered as a Community trademark before the Office for Harmonisation in the Internal Market (OHIM). The court argued that, as OHIM has its seat in Alicante, Spain (ie, outside the Netherlands), the trademarks were outside the court's remit and it therefore had no authority to grant permission for seizure.

Attachment orders retain element of surprise under revised Brussels I Regulation
Netherlands | 31 March 2015

The question of whether Dutch companies can seize the assets of third parties domiciled in other EU member states has come under the spotlight following the entry into force of the revised EU Brussels I Regulation in January 2015. The regulation provides uniform rules throughout the European Union on international jurisdiction and the recognition and enforcement of civil judgments.

Supreme Court orders full assessment of AFC Ajax shirt
Netherlands | 10 March 2015

In a case examining whether Dutch football club AFC Ajax's trademarks in its club strip were infringed, the Supreme Court has held that the appeal court failed to carry out a full assessment of the similarity of the marks. Such an assessment of the likelihood of confusion may be skipped only where there is no similarity between the earlier mark and the challenged mark.

Screenscrapers, database rights and contract law
Netherlands | 17 February 2015

The recent case of Ryanair v PR Aviation concerned the collection of information that did not meet the specific requirements for database protection under the EU Database Directive. This raises the question of whether a database owner should seek to avoid qualifying for protection under the directive – for example, by downplaying the investments or creative choices it made in creating the database.

Revised Brussels I Regulation offers opportunities for CMR carriers
Netherlands | 03 February 2015

The Rotterdam Court recently declined jurisdiction in proceedings between a carrier and its principal, because it considered an exclusive jurisdiction clause in the relevant contract to be null and void under the Convention on the Contract for the International Carriage of Goods by Road. Carriers should be aware of the options available to them to avoid falling foul of this ruling, bearing in mind the new EU Brussels I Regulation.

Disclosure of evidence
Netherlands | 04 November 2014

Seized evidence can be obtained only with the approval of the counterparty or following a court order. It is unlikely that the counterparty will give its approval. However, a party with a legitimate interest may, for its own account, request the court to inspect, copy, extract or seize records.

Seizure of evidence
Netherlands | 02 September 2014

The Supreme Court recently clarified that it is possible to seize evidence in all civil cases. The new measure makes it possible to secure evidence at an early stage during or even before civil proceedings. The court will judge whether seizure is necessary and will grant permission if certain conditions are met.

Supreme Court refers preliminary jurisdiction question to ECJ
Netherlands | 01 July 2014

Holding companies based in the Netherlands often have directors who live and work outside the Netherlands. In cases of directors' liability brought before the Dutch courts, the question may arise of whether the relevant court has jurisdiction. The Dutch Supreme Court recently formulated preliminary questions for the European Court of Justice which should help to bring more clarity to this topic.

Court may investigate behaviour of a shareholder
Netherlands | 25 March 2014

The Enterprise Chamber has been authorised to investigate the behaviour of individual shareholders of Dutch legal entities if that behaviour sufficiently affects and negatively influences the actual course of events within the company. While the chamber may order an inquiry, it is not obliged to do so – as happened in a recent court proceeding.

Court decides takeover battle for privatised hospital
Netherlands | 25 February 2014

A takeover battle over the Slotervaart hospital – the Netherland's first privatised hospital – arose between chief executive officer Aysel Erbudak and her three children and the heirs of deceased investor Jan Schram. Because the conflict threatened the stability of medical care, the Enterprise Chamber of the Court of Appeal intervened, demonstrating that it can come up with quick and bold solutions in takeover battles.

Shipping & Transport

Supreme Court confirms right to limit liability
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.

Netherlands prepares to adopt Rotterdam Rules
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.

Dutch court rules that tank storage provider cannot invoke exoneration clause contained in VOTOB conditions
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 underlines arrestors' rights
Netherlands | 09 May 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.

Supreme Court rules on determination of LLMC claims
Netherlands | 11 April 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.

Road carriers face difficulty in establishing CMR force majeure exemptions
Netherlands | 14 March 2018

On January 18 2018, despite severe weather warnings, numerous haulage companies allowed their trucks to take to the roads. As a result, many trucks were blown over, leading to extensive amounts of damage. However, any reliance by road carriers on force majeure for events arising from the storms will be hard to enforce in the Dutch courts. While it is not unthinkable that such a situation might exist, the numerous weather forecasts and code red warnings will have created a heavier burden for carriers.

Yacht damage dispute clarifies product liability implications under EU directive
Netherlands | 24 January 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.

Logistics service providers must be clear on general terms and conditions
Netherlands | 08 November 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.

Courts provide welcome clarity on ship arrest jurisdictional issues
Netherlands | 13 September 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.

Rotterdam Guarantee Form Limitation 2017 introduced
Netherlands | 06 September 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.

Rotterdam District Court rules on status of on-board cargo damage survey
Netherlands | 14 June 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
Netherlands | 03 May 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.

ECJ advocate general rules on drivers' weekly rest periods
European Union | 08 March 2017

The extent to which sleeping in vehicles is allowed under EU law has been the subject of much debate in the road transportation industry. EU employers of drivers of road transport vehicles will have noted with interest the European Court of Justice (ECJ) advocate general's recent opinion that drivers cannot take their regular weekly rest periods inside their vehicles. Although it may be several months before the ECJ reaches a decision on this issue, the court usually follows the advocate general's advice.

Landmark CMR rulings also apply to rail carriage liability
Netherlands | 11 January 2017

Dutch case law regarding the interpretation of the Uniform Rules Concerning the Contract of International Carriage of Goods by Rail (CIM) is limited. By contrast, the Supreme Court has produced a rich body of case law on the interpretation of the Convention on the Contract for the International Carriage of Goods by Road (CMR). The Rotterdam court recently held that two landmark Supreme Court rulings on liability under the CMR also apply to rail carriage liability under the CIM.

Amsterdam court authorises EU ship arrest order
Netherlands | 12 October 2016

In a recent decision which authorised the arrest of a vessel in four EU jurisdictions, the Amsterdam court reconfirmed that the Netherlands will not hesitate to attach assets throughout the European Union under the recently revised Brussels I Regulation. The decision strengthens the perception of the Netherlands as a ship arrest haven by demonstrating that a Dutch arrest order could provide a solution for creditors seeking to attach assets throughout the European Union.

Global limitation of liability and claims for salvage costs
Netherlands | 24 August 2016

Two recent decisions from the Court of Appeal of The Hague have highlighted the issue of which claims fall under Articles 2(d) and (e) of the Convention on Limitation of Liability for Maritime Claims (LLMC). In both cases, barge and cargo owners claimed salvage costs against the owners of seagoing vessels, which sought to limit their liability under the LLMC.

Liability of CMR carriers in addition to liability under CMR Convention
Netherlands | 10 August 2016

The Arnhem-Leeuwarden Court of Appeal recently ruled that carriers can be liable under national law for damage to goods during discharge. The decision adds to the body of case law on the liability of Convention on the Contract for the International Carriage of Goods by Road (CMR) carriers, in addition to their liability under the CMR convention.

Ship suppliers expected to benefit from further EU integration
Netherlands | 20 July 2016

In the wake of new regulations promoting closer integration of the EU jurisdiction, some recent decisions suggest that suppliers of goods and services to the international shipping industry – including the likes of bunker suppliers – will modify their standard terms explicitly to include Rotterdam as an alternative forum for pursuing trans-border arrest orders against debtors' assets.

Choice of law implications when insuring maritime risks
Netherlands | 08 June 2016

In a recently published judgment by the Amsterdam Court of Appeal the question of which law determines the extent of the rights that an insurer may exercise against the debtor of the insured arose – the law applicable to the insurance contract or the law applicable to the claim of the insured against the debtor.

CMR carrier held liable for breach of additional contractual obligation
Netherlands | 16 March 2016

The Supreme Court recently held that a carrier operating under a contract that incorporates the Convention on the Contract for the International Carriage of Goods by Road (CMR) can be liable to its contractual counterparty, even if the carrier has delivered the goods in sound condition and on time. This is the first time that the Supreme Court has held a CMR carrier liable for breach of an additional contractual obligation.

Rotterdam Court takes wider view of injunctive relief
Netherlands | 13 January 2016

In a recently published judgment the Rotterdam Court has confirmed that, following a charterparty hire dispute, claimants can obtain speedy injunctive relief in respect of damages, including when parties have agreed on arbitration abroad and arbitration proceedings already commenced.

Master receives deferred suspension for illegal beaching of vessel
Netherlands | 23 December 2015

A recent decision of the Dutch disciplinary committee for the shipping industry demonstrates how illegally beaching a vessel can have consequences for the master of the ship. It clearly demonstrates that the beaching for subsequent demolition of ships moved from the European Union to Southeast India places the master of such ships at risk of suspension.

Foreign judgments unlikely to influence Dutch OW Bunker rulings
Netherlands | 25 November 2015

To date, the well-publicised bankruptcy of marine fuel supplier OW Bunker has spawned an estimated $1.5 billion worth of claims worldwide. These claims are treated differently in different jurisdictions. It remains to be seen whether recent judgments in other jurisdictions – in particular, in the United Kingdom and Canada – will influence the outcome of the disputes before the Dutch courts.

Roadblocks: who foots the bill for cargo loss or damage in the event of delay?
Netherlands | 11 November 2015

Demonstrations by disaffected farmers blocked several major highways in Europe recently, resulting in increased costs and reduced profits for the road haulage industry and financial loss for cargo interests due to delay and damage. This raises the question of whether and to what extent the road carrier is liable for such loss and damage.

Appeal court partially restores retention rights for Dutch shipyards
Netherlands | 07 October 2015

An appeal court recently partially restored the traditional tenet of Dutch maritime law and practice whereby the country's shipyards can exercise a right of retention on vessels on which they have performed work. In so doing, it set aside a controversial 2014 ruling holding that a shipyard could not exercise its right of retention on vessels on which it was owed money because it had no prospect of being paid by the debtors.

Supreme Court rules on successive carriage under CMR
Netherlands | 23 September 2015

The Supreme Court recently issued a surprising judgment regarding successive carriage within the meaning of Article 34 of the Convention on the Contract for the International Carriage of Goods by Road. The decision means that cargo interests and carriers seeking recovery are in a stronger position than they were previously under Dutch law, which was regarded as having a narrow approach.

Rotterdam court holds that Incoterms is no guarantee on court jurisdiction
Netherlands | 09 September 2015

The Rotterdam District Court recently ruled that it lacked authority to hear a dispute between the buyer and seller of an item of machinery transported from Germany to the Netherlands, holding that the actual place of delivery was outside its jurisdiction. It follows that the mere mention in Incoterms of a specific city is by no means a guarantee that a dispute will be heard by a court in that city.

Bill introduced to concentrate shipping disputes in Rotterdam
Netherlands | 15 July 2015

Legislators in the Netherlands have introduced a bill which seeks to concentrate the majority of Dutch maritime law cases in the Rotterdam District Court. It is expected that this will enhance the quality of justice and the efficiency of the judicial process in such cases, and further the development of knowledge and expertise of the Rotterdam District Court.

Rotterdam court can now order EU-wide ship arrests
Netherlands | 17 June 2015

A recent revision of the EU Brussels I Regulation includes some changes with important implications for owners, charterers and other parties looking to arrest vessels or attach other assets in EU jurisdictions. The whole European Union is now a potential ship arrest haven for parties that initiate action through the Rotterdam court. The only proviso is that the court have jurisdiction on the merits of the claim.

Dutch law clear on definition of a 'ship'
Netherlands | 29 April 2015

​In many jurisdictions worldwide there appears to be no clear definition of what constitutes a 'ship'. However, this is not the case in the Netherlands, where 'ships' are clearly defined as "all objects which, according to their construction, are destined to float and which float or have done so". This could be of strategic advantage to lenders looking to obtain security over high-value assets.

SOLAS amendments on containerised cargo will impact terminal operators
Netherlands | 25 March 2015

Changes to the International Convention for the Safety of Life at Sea relating to the verified weight of containers and their cargo could have serious implications for terminal operators. If the gross mass of containers is not verified by the shipper, the terminal operator must not load containers on board a ship. This could result in terminal operators incurring substantial costs.

State right to intervene under Nairobi Convention at odds with law of the sea
Netherlands | 18 February 2015

The Netherlands recently tabled a bill to facilitate its accession to the Nairobi International Convention on the Removal of Wrecks. While the legislature maintains that the bill is in conformity with the law of the sea, the Council of State has advised that the bill should be revised to clarify that the state may intervene only against wrecks of ships that fly the flag of a contracting state to the convention.

Revised Brussels I Regulation offers opportunities for CMR carriers
Netherlands | 04 February 2015

The Rotterdam Court recently declined jurisdiction in proceedings between a carrier and its principal, because it considered an exclusive jurisdiction clause in the relevant contract to be null and void under the Convention on the Contract for the International Carriage of Goods by Road. Carriers should be aware of the options available to them to avoid falling foul of this ruling, bearing in mind the new EU Brussels I Regulation.

Court of Appeal rules on Himalaya and knock-for-knock clauses
Netherlands | 07 January 2015

In a dispute which turned on the interpretation of a Himalaya clause and a knock-for-knock clause in a time charter agreement between an oil platform operator and a shipowner, the Court of Appeal has modified a district court ruling and held that the platform operator was not liable for damage to a vessel caused during repair and maintenance work.

Dutch yards may have to rethink strategy on contractual protection
Netherlands | 03 December 2014

Traditionally, shipyards in the Netherlands have been able to exercise a right of retention, until they have been paid, on vessels on which they have performed work. However, a recent Gelderland Court decision has thrown this precept into doubt; and Dutch yards may need to rethink their contractual strategy as a result.

Jurisdiction of Dutch courts extended following attachment of a vessel
Netherlands | 19 March 2014

The Court of Appeal of The Hague has recently held that that the International Convention Relating to the Arrest of Seagoing Ships 1952 applies to all vessels, irrespective of flag and owner. The decision substantially extended the jurisdiction of the Dutch courts following the attachment of a vessel.

Supreme Court rules on CMR limitation period interruption
Netherlands | 22 January 2014

The Dutch Supreme Court has handed down an important judgment which confirms that in disputes pending before the Dutch courts involving the carriage of goods under the Convention on Contracts for the International Carriage of Goods by Road, a time bar cannot be interrupted following a previous suspension, even if the suspension has already been lifted due to a rejection of liability.

ECJ ruling supports forum shopping to limit liability under CMR
Netherlands | 15 January 2014

In a recent landmark decision the European Court of Justice in Luxembourg definitively put its weight behind forum shopping as a means of limiting liability under the Convention on the Contract for the International Carriage of Goods by Road in carrier-friendly countries. This is a boon to the Dutch jurisdiction and specifically comes at the expense of the courts in Germany.

Declarations of enforceability and vessel arrest
Netherlands | 25 September 2013

The Arrest Convention allows a pre-judgment arrest of a vessel flying the flag of a convention state to obtain security only for 'maritime claims'. However, a recent ruling has confirmed that in the Dutch courts protective measures against a vessel can be taken for non-maritime claims immediately after a foreign judgment has been declared enforceable in the Netherlands pursuant to the Brussels I Regulation.

Netherlands to accelerate ratification process for Rotterdam Rules
Netherlands | 11 September 2013

Moves are under way to introduce a bill to accelerate ratification by the Netherlands of the Rotterdam Rules, after seven major industry organisations successfully applied pressure to revive the process. Universal application of the rules could facilitate international trade by making its underlying contracts and documentation more efficient and transparent. The Netherlands is attempting to act as a catalyst in this respect.

Dramatic increase in penalty for cutting corners in the North Sea
Netherlands | 28 August 2013

Ships which deviate from the mandatory shipping lane above the Dutch Wadden Sea Islands will be subject to higher penalties, after the Cabinet recently voted to increase the maximum fine for such offences from €7,600 to €78,000. The increased fines are intended to take effect from January 1 2014. The proposed legislation amendments will be published on introduction of the bill in the House of Representatives.

Right of retention could benefit shipping creditors
Netherlands | 12 June 2013

A significant number of vessels are being arrested in the current shipping market because of payment problems or as the result of shipowner insolvencies. Therefore, it can be useful to exercise a right of retention in respect of a vessel in order to secure the right to qualify as a creditor of the shipowner. Even though such rights are not prioritised, holders of them may still be in a reasonably strong position under Dutch law.

Does invoicing to master and owners in case of a bunker supply work?
Netherlands | 10 April 2013

In the bunker industry, it is common practice to issue invoices to the "master and/or owners and/or operators and/or managers and/or charterers c/o" (or similar wording), followed by the name of the person or company actually ordering the bunkers. So does this mean that, if unpaid, a claim for the bunkers can be made against the master, the owners or the vessel?

Entitlement to limit liability under Strasbourg Convention
Netherlands | 13 March 2013

The Netherlands Appeal Court has overturned a Rotterdam Court ruling in a dispute involving entitlement to limit liability under the Strasbourg Convention on the Limitation of Liability in Inland Navigation. The dispute arose during the transportation of containers on board a push barge, which was being pushed by another vessel. Under Dutch law, a push barge and a pushed barge are considered to be two separate vessels.

Delivery under CMR ends when consignees take control
Netherlands | 06 February 2013

The issue of what constitutes delivery under the terms of the Convention on the Contract for the International Carriage of Goods by Road, and establishing when the period of the carrier's liability ends, continues to occupy the time of the Dutch courts. The Middleburg District Court recently ruled on this issue in a dispute involving a shipment of mussels.

Proof of delivery - the CMR consignment note and VAT
Netherlands | 12 December 2012

If a seller cannot prove that goods were delivered to its foreign buyer, it will have to pay the value added tax on the goods. For this reason, many sellers include a clause in Convention on the Contract for the International Carriage of Goods by Road (CMR) contracts stating that the carrier must present a proof of delivery. A recent Supreme Court decision illustrates how a CMR consignment note can provide proof of delivery of cargo.

Legislative change to implement Athens Protocol and EU passenger liability rules
Netherlands | 19 September 2012

The government has agreed to amend national law to facilitate the implementation of international and European legislation governing the carriage of passengers by sea. The amendments will see the Athens Convention and its protocol and EU Regulation 392/2009 enter into force - although in relation to the protocol, a reservation has been made in respect of carriers' liability.

Supreme Court overturns CMR limitation ruling on negligence
Netherlands | 29 August 2012

The Supreme Court has ruled that claimants could not rely on the Convention on the Contract for the International Carriage of Goods by Road (CMR) to prove gross negligence on the part of the defendants in a dispute involving theft of a high-value cargo from a parked trailer. The judgment reinforces the belief that it is virtually impossible in the Dutch courts to break the CMR limitation on the basis of gross negligence.

Supreme Court rejects autonomous CMR application in multimodal carriage
Netherlands | 08 August 2012

The Supreme Court recently confirmed the Court of Appeal's judgment in a case which addressed the autonomous application of the Convention on the Contract for the International Carriage of Goods by Road (CMR) to international multimodal carriage. In so doing, the Supreme Court established that, on balance, the CMR does not apply to multimodal carriage which is not so-called 'piggyback' carriage.

Dutch approach to jurisdiction under bills of lading diverges from EU regulations
Netherlands | 01 August 2012

A case involving jurisdiction clauses under bills of lading decided by the Appeal Court of The Hague highlights how the Dutch Civil Procedure Code differs from current European regulations in its treatment of such issues. The judgment provides a comparison between the systems of Article 629 of the code and Article 17 of the Brussels I Convention.

Burden imposed on claimant in disputes with terminal operators
Netherlands | 25 July 2012

The Rotterdam Court's decision in The Allegonda is the latest in a series of judgments handed down in disputes involving claims filed by shipowners and their insurers in tort against terminal operators for damage to hull and cargo. These decisions confirm the heavy burden of proof on claimants seeking to establish wrongful acts carried out by terminal operators in disputes over liability.

Appeal court upholds decision to lift ship arrest
Netherlands | 06 June 2012

Historically, the Netherlands has been regarded as a haven for those seeking to effect the arrest of a ship. This perception is backed up by extensive case law, but it may not always be possible to bring an argument within the ambit of the relevant legislation – witness the recent decision of the Leeuwarden Court of Appeal in Caballo Genitor.

Court accepts forum arresti for vessels flying non-contracting state flag
Netherlands | 16 May 2012

The contracting states to the 1952 Arrest Convention have long debated whether the forum arresti (jurisdiction) rule applies to vessels which are flying the flag of a non-contracting state. A Dutch court recently confirmed that it does when delivering a judgment establishing that a party can start proceedings on the merits of a case in the Netherlands on the basis of forum arresti under the convention.

Rotterdam Court says claims for oil cargo removal must be met by property fund
Netherlands | 09 May 2012

The Rotterdam Court recently held that claims for the removal of an oil cargo from a tanker barge involved in a collision with a vessel should be paid for from a property fund, and that a separate wreck fund need not be constituted. This conflicts with an earlier decision of the same court as to whether owners should constitute a wreck fund or provide security with regard to claims in respect of the removal of cargo from another ship.

Ship finance: banks taken hostage through Chapter 11
Netherlands | 09 May 2012

To avoid an enforced restructuring or acceleration and foreclosure, shipowners are increasingly looking for court protection - in particular, Chapter 11 protection under US federal law. However, where there is a threat of a Chapter 11 filing, the mortgagee may steal a march on the owner by applying for bankruptcy in another country such as the Netherlands.

Jurisdiction clause in FENEX conditions ineffective despite invoice evidence
Netherlands | 25 April 2012

The Supreme Court recently rendered two judgments in which it ruled that a jurisdiction clause contained in the FENEX conditions - used by almost all forwarders in the Netherlands - was ineffective, even though there had been an ongoing business relationship between the forwarder and its client and the invoices between the two parties had contained references to these conditions.

Liability ends at time of delivery under road carriage contract
Netherlands | 28 March 2012

The Supreme Court has handed down its first ever decision on the issue of when cargo is deemed to be delivered under a contract of carriage in respect of goods transported by road within the Netherlands. The decision provides a clear definition of the term 'delivery' in this context.

Enforcing a mortgage through a court-approved private sale
Netherlands | 15 February 2012

Any vessel – whether inland waterway or sea-going, Dutch-flagged or foreign-flagged – can be auctioned in the Netherlands through a private sale as a means to enforce a mortgage, provided that the mortgagee makes an application to the court for the sale. A court-approved private sale has all the 'washing clean' effects of an auction, but the formalities which the law requires for an auction must also be fulfilled.

Supreme Court judgment strengthens Dutch arrest-friendly reputation
Netherlands | 18 January 2012

The Supreme Court recently handed down a ruling which consolidates the Netherlands' reputation as a comparatively friendly jurisdiction in which to effect the arrest of a ship. In essence, the court ruled that a ship may be arrested as security under the 1952 Arrest Convention even if it is not a sister ship to the vessel in connection with which the maritime claim arose.

Attaching maritime assets in insolvency
Netherlands | 02 November 2011

Rather exceptionally, the Netherlands allows a mortgagee to enforce mortgages even if the debtor is insolvent. This is of particular significance for the maritime industry given the large number of reported bankruptcies and voluntary liquidations involving shipping companies and the banks. The attachment of assets can be a complex business in the shipping industry.

Report urges government to help shipping industry arm against pirates
Netherlands | 05 October 2011

As the debate over the rights and wrongs of arming ships against the threat to life and property posed by pirate attacks continues, an independent committee has advised the Dutch government to move towards a higher level of protection for its merchant fleet including, "if necessary", the use of armed private security guards.

Flying the flag under the 1952 Arrest Convention
Netherlands | 31 August 2011

What does 'flying the flag of a contracting state' mean under the 1952 International Convention Relating to the Arrest of Sea-Going Ships? This was a central question in a recent dispute before the Leeuwarden Court of Appeal. The case appears to be one of the first – at least in the Netherlands – which deals with the definition of 'flying the flag of a contracting state', although the issue has also been dealt with in an Irish decision.

Carrier's liability does not end with handing over of CMR note
Netherlands | 10 August 2011

A recent interlocutory judgment of the Roermond District Court has reaffirmed that the period of carrier's liability under Article 17.1 of the Convention on the Contract for the International Carriage of Goods by Road (CMR) does not end with the handing over of the CMR note only. Rather, the carrier must also prove that it gave actual custody of the goods to the consignee.

E-protocol to CMR enters into force
Netherlands | 15 June 2011

The United Nations Economic Commission for Europe Protocol to the Convention on the Contract for the International Carriage of Goods by Road, to which the Netherlands is a signatory, has now entered into force in the Netherlands and the other four states which have ratified it. The e-protocol is designed to ease international road freight by allowing the use of electronic consignment notes in international road transport.

Netherlands enacts LLMC 1996 Protocol and Bunkers Convention
Netherlands | 12 January 2011

Two pieces of international shipping legislation have entered into force in the Netherlands. The LLMC 1996 protocol aims to increase limitation of liability for shipowners, whereas the Bunkers Convention will require shipowners to have a certificate proving that valid insurance coverage has been obtained in case of pollution damage involving bunker oil.

Claimants must substantiate wrongful acts of terminal operators
Netherlands | 27 October 2010

A recent ruling of the Rotterdam court has confirmed the heavy burden of proof on claimants attempting to establish wrongful acts carried out by terminal operators in disputes over liability for hull damage. The court held that the mere fact that damage had occurred during loading did not mean that the damage was necessarily the result of a wrongful act on the part of the terminal operator or its employees.

Amsterdam court rules that toxic waste export is illegal
Netherlands | 15 September 2010

The Amsterdam District Court has imposed a €1 million fine on an international oil and commodities trading company which shipped toxic waste from Amsterdam to Côte d'Ivoire in 2006 for contravening European Economic Community regulations on the supervision and control of waste shipments within, into and out of the European Union.

Autonomous application of CMR to international multimodal carriage
Netherlands | 14 July 2010

The Court of Appeal of The Hague recently ruled that an Icelandic shipping company could invoke a choice of forum provision under a multimodal transport contract. The court took a clear stance in the international debate concerning the autonomous application of the Convention on Contracts for the International Carriage of Goods by Road conditions to the international carriage of goods as part of multimodal transport.

Scope of one-year time bar under CMR
Netherlands | 16 June 2010

A recent Amsterdam Court of Appeal decision provides a timely reminder of the circumstances under which recovery claims may be deemed to be time barred by the Dutch courts under the Convention on the Contract for the International Carriage of Goods by Road (CMR). This decision makes it clear that recovery claims for damage to goods other than those to be transported under the contract fall under Article 32 of the CMR.

Yukos confirms Dutch territorial approach to bankruptcy
Netherlands | 04 November 2009

Confirmation of the Netherlands' territorial approach to bankruptcy was provided by a recent decision of the Dutch Supreme Court. The court ruled that in the absence of an international agreement between Russia and the Netherlands, Dutch assets were not included in the receivership procedure, thereby confirming that foreign bankruptcies do not preclude or limit the possibility to attach assets in the Netherlands.

One claim, two proceedings
Netherlands | 28 October 2009

The Rotterdam District Court recently rendered an important judgment regarding the 'suit pending' status of two proceedings instituted on the same day in two EU member states. Since the Dutch bailiff had received the writ at 10:25am and since the Italian proceedings were pending only from 11:00am, the court considered that the Dutch proceedings were pending first - the Dutch court was therefore competent to hear the case.

Bow thruster liability ruling
Netherlands | 07 October 2009

A recent Hague Court of Appeal decision on limitation of liability on inland waterways will be of interest to maritime jurisdictions throughout Europe, where there is a dearth of case law on the issue of whether a thruster's power should be taken into account when deciding liability limitation.

Court Holds That Damages Can Be Offset against Down-Payment
Netherlands | 09 September 2009

The Amsterdam District Court has found in favour of a Netherlands-based shipyard in a contractual dispute over damages and loss of profits resulting from the decision to rescind a contract to build a luxury yacht for Bermudian principals. The court held that Alpha was in default by virtue of having rescinded the contract unlawfully, as a result of which it was liable for all damages incurred by the shipyard.

Rotterdam Court Upholds Algerian Arrest Order
Netherlands | 29 July 2009

The Rotterdam District Court has upheld the right of an Algerian court to order the arrest of a container vessel by a Dutch bunker supplier for the non-payment of bills. In so doing it dismissed an application to lift the arrest on the grounds that the claim could not be enforced against the ship because, among other things, proper justice in the case was not achievable in Algeria.

Food for Thought as Rotterdam Court Rules against Overweight Cook
Netherlands | 20 May 2009

A recent Rotterdam court decision to dissolve the employment contract of a ship's cook for being overweight was correct, but the cook should have been awarded some compensation for his length of service. The cook had been declared unfit to work and refused a medical certificate because he was unable to pass through a manhole unaided, as required by regulation.

Remedies for Lenders in the Recession
Netherlands | 25 February 2009

Shipping has been hit hard by the recession. In particular, the bulk and container markets are suffering badly under the worldwide economic downturn. During the shipping boom that lasted until last year, many shipowners bought ships at high prices against high lending. A large number of those owners can now no longer pay back principal and interest to their lenders.

Carrier's Liability for Delay under the Carriage of Goods by Road Convention
Netherlands | 07 January 2009

Under the Carriage of Goods by Road Convention, the carrier is liable for any loss of or damage to goods that occurs during transportation, as well as for any delay in delivery. However, the Dutch courts provide certain exceptions that may allow a carrier to avoid liability resulting from delay.

Court Rules on Unlawful Exercise of Lien
Netherlands | 15 October 2008

The Rotterdam District Court recently delivered judgment in a dispute between cargo interests and carriers/charterers over the alleged unlawful exercise of a lien on cargo involving, among other things, the authority to issue bills of lading and failure to pay freight costs.

Electronic consignment notes usher in new CMR era
Netherlands | 03 September 2008

On May 28 2008 the Netherlands signed the United Nations Economic Commission for Europe Protocol to the Convention on the Contract for the International Carriage of Goods by Road (CMR), which is designed to ease international road freight and improve good governance in road transport by allowing the use of electronic consignment notes.

Arbitrating Transport Disputes
Netherlands | 06 August 2008

The Netherlands is home to at least three of the finest arbitration institutes in the world with respect to transport and other related services, including combined transport, shipbuilding, road transportation and offshore services. This update outlines some of the options for the arbitration of transport disputes.

Mortgage Claims Can Outrank Crew Claims
Netherlands | 02 July 2008

In the Netherlands, unlike many other countries, crew claims do not always take priority over mortgage interests. Banks seeking to enforce mortgages in the Netherlands through the judicial auction system enjoy a number of advantages, as illustrated by a recent decision of the Amsterdam courts.

Government Announces Plan to Ratify 1996 LLMC Protocol
Netherlands | 20 February 2008

The Ministry of Justice has announced its intention to introduce a bill into Parliament to ratify the 1996 Protocol to Amend the 1976 Convention on Limitation of Liability for Maritime Claims. Apart from ratifying the protocol, the draft bill also includes a proposal to denounce the 1976 convention.

Are We Still in Road Carrier CMR Heaven?
Netherlands | 25 July 2007

The Rotterdam District Court has ruled that the Convention on the Contract for the International Carriage of Goods by Road (CMR), rather than the Warsaw Convention, applied in a dispute over cargo loss under a combined transportation agreement. Among other things, the court found that the carrier was fully liable for certain losses and that the three-year time limit under the CMR Convention applied.

Collision Provisions Take Precedence over General Principles of Tort Law
Netherlands | 11 July 2007

The Court of Cassation has recently handed down its judgment in the Zwartemeer Case. The judgment is significant as it settles a dispute raging in the Netherlands over whether the statutory provisions on damage caused by a ship take precedence over the statutory provisions containing the general principles of tort law.

Harmonizing Dutch Inland Waterways Communications
Netherlands | 27 June 2007

The Shipping Act is undergoing revision in order to bring national legislation into line with the EU Inland Waterways Directive. A legislative proposal is currently before the Lower House of Parliament. Under the amended Shipping Act, Dutch central traffic systems will be reorganized so that they can use river information services, a concept introduced by the directive.

What Is the Scope of Article 32 of the CMR Convention?
Netherlands | 20 June 2007

Recent decisions have shed light on the issue of time bar under the Convention on the Contract for the International Carriage of Goods by Road (CMR). Under Article 32 of the convention, the period of limitation is one year for actions arising out of CMR carriage. However, do such actions involve only the carrier's liability or do all claims arising out of CMR carriage fall within the scope of Article 32?

Supreme Court Rules on Constitution of Limitation Fund
Netherlands | 31 January 2007

The Supreme Court has recently rendered a judgment on the constitution of a limitation fund which consolidated the legal protection of shipowners against conservatory arrests and enforcement measures of creditors. Arguably, the ruling makes it easier for shipowners to influence the choice of venue for the constitution of the limitation fund.

The Alpha Future Case: Arbitration Agreement or Not?
Netherlands | 24 January 2007

Bills of lading often refer to an arbitration clause in an underlying document. If a dispute arises, the question is whether the reference is sufficiently clear to conclude that the parties are bound by arbitration. However, what if the bill of lading refers to different arbitration clauses? The Hague Court of Appeal has rendered an important judgment in this respect.

Towards a More Unified Law on Carriage of Goods by Inland Waterways
Netherlands | 25 October 2006

The Budapest Convention, which regulates the carriage of goods by inland waterways, has recently entered into force in the Netherlands. The convention applies to international carriage - that is, the place of receipt and that of delivery must be in different states. States may also declare that the convention shall apply to national carriage.

Carrier's Delivery Obligations: The Sonex Case
Netherlands | 04 October 2006

A recent first-instance judgment of the Court of Rotterdam questioned conclusions reached in two English shipping decisions. The Dutch case concerned the question of whether a carrier is relieved of its obligations under a bill of lading when it has delivered goods to a customs authority when obliged to do so by local regulations.

Contracts of Carriage: Arbitration Enters the Dutch Arena
Netherlands | 02 August 2006

In cases involving contracts of carriage, the approach by the Dutch courts has long been that, if the defendant acted as a forwarder and the Fenex conditions apply, the court is not competent to hear the case. However, several courts have recently held that the Convention on the Contract for the International Carriage of Goods by Road does not prevent parties from applying additional general conditions to contracts.

Ship Arrest Guarantees Could Take Years to Be Reimbursed
Netherlands | 10 May 2006

Shipowners whose vessels have been arrested in the Netherlands need to be careful when putting up security to get their ships released quickly. Recent case law shows that, even if owners have a strong case for rejecting the claim, they may still have to wait several years before being able to reduce or release the security.

Court Orders Shipowner to Disclose Documents Concerning Loss of Cargo
Netherlands | 21 September 2005

Following the destruction of a cargo onboard a ship, the underwriters of the cargo requested that the shipowner disclose documents relating to the cause of loss. The court ordered the disclosure of all documents relating to the facts of the case, but ruled that the shipowner was not required to release documents relating to the subjective opinion of its experts.

Hot Air Becomes Reality
Netherlands | 29 June 2005

On May 19 2005 the first wave of requirements under MARPOL Annex VI - environmental regulations imposing global and regional limits on air emissions from ships - came into force. The Netherlands is not a signatory to MARPOL Annex VI, but may still have to comply with the new rules as Dutch suppliers will be confronted with shipowners and charterers requesting compliance with Annex VI.

ECJ Rules Netherlands Must Change Vessel Registration Requirements
Netherlands | 27 April 2005

The European Court of Justice ruled that Dutch legal requirements for ship registration contravene European law because they restrict the freedom of establishment of ship owners. As a result, Dutch law will be changed in the near future to make vessel registration easier for non-European companies. The decision has implications for ship registration rules in all EU member states.