Latest updates

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

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

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

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

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

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

Groundbreaking judgment will result in quicker refusal of Benelux trademark applications for descriptiveness
  • Litigation
  • International
  • 22 September 2020

The Benelux Court of Justice recently assessed whether the Benelux Office for Intellectual Property (BOIP) rightly refused the Benelux trademark PET'S BUDGET for being descriptive. The central question in this case was the criterion to assess whether a sign is descriptive. The implications of the case are groundbreaking since it will likely lead to quicker findings of signs or trademarks being descriptive and more refusals at the BOIP.

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

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

Groundbreaking judgment will result in quicker refusal of Benelux trademark applications for descriptiveness
AKD
  • Intellectual Property
  • International
  • 14 September 2020

The Benelux Court of Justice recently assessed whether the Benelux Office for Intellectual Property (BOIP) rightly refused the Benelux trademark PET'S BUDGET for being descriptive. The central question in this case was the criterion to assess whether a sign is descriptive. The implications of the case are groundbreaking since it will likely lead to quicker findings of signs or trademarks being descriptive and more refusals at the BOIP.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Dutch scheme of arrangement: new pre-insolvency restructuring instrument
  • Insolvency & Restructuring
  • Netherlands
  • 19 June 2020

The House of Representatives recently voted in favour of the Court Approval of a Private Composition (Prevention of Insolvency) Act (WHOA). Inspired by the UK scheme of arrangement and US Chapter 11 proceedings, the WHOA will introduce to the Netherlands a legal framework that enables debtors to restructure their debts outside formal insolvency proceedings by means of a court-approved restructuring plan.

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

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

Dutch court of appeal diverges from German appellate court in G-Star case
AKD
  • Litigation
  • Netherlands
  • 21 April 2020

In 2019 The Hague Court of Appeal overruled a first-instance court decision even though that court had followed an earlier German higher court decision based on the principle of loyalty under EU law. The Dutch judgment demonstrates that trademark law specifics can easily stand in the way of the EU principle of loyalty. It is also a useful reminder that, in the context of trademark infringement assessments, a trademark's level of distinctiveness is a substantial aspect, but one which can change due to evolving market circumstances.

Dutch court of appeal diverges from German appellate court in G-Star case
AKD
  • Intellectual Property
  • Netherlands
  • 20 April 2020

In 2019 The Hague Court of Appeal overruled a first-instance court decision even though that court had followed an earlier German higher court decision based on the principle of loyalty under EU law. The Dutch judgment demonstrates that trademark law specifics can easily stand in the way of the EU principle of loyalty. It is also a useful reminder that, in the context of trademark infringement assessments, a trademark's level of distinctiveness is a substantial aspect, but one which can change due to evolving market circumstances.

Looking ahead towards a new global trading reality
AKD
  • Shipping & Transport
  • International
  • 08 April 2020

The COVID-19 crisis is now several weeks old and the world finds itself in an unprecedented situation both from a health and an economic perspective. This article examines how the shipping industry can manage its supply chain in the current situation and with particular focus on planning ahead for the stage when the current trade restrictions are lifted.

Burden of proof remains with shipowner in proving terminal operator liability
AKD
  • Litigation
  • Netherlands
  • 31 March 2020

The loading and unloading of cargo from ships is a key element in the transport chain. However, ships are sometimes damaged during these operations. This raises the question of whether – and on what grounds – a terminal operator can be successfully held liable for such damage. A recent Rotterdam District Court decision upheld the standard of liability established in Dutch case law, confirming that the burden of proof lies with the shipowner when it comes to demonstrating terminal operator liability.