Litigation in The Netherlands
Before legal proceedings in The Netherlands are started, it should be considered whether the case can be submitted to any of the Dutch courts (in legal terms: whether the Dutch courts have jurisdiction), or not. The answer to this question depends on Dutch law (The Code of Civil Proceedings), EU law (EU/EC regulations), and a variety of international treaties. The Dutch courts shall only have international jurisdiction if this follows from applicable law, or when parties have agreed to submit a case before a Dutch court as having jurisdiction. EU regulations and treaties prevail above national rules of law in cases between member states or contracting states. The most relevant EU regulation is the EU execution regulation (EU council regulation number no. 44/2001, also called the “EEX-regulation”) and the most relevant treaty is the Lugano Convention. The Lugano Convention offers – generally spoken – the same rules on jurisdiction and enforcement of foreign judgments as under the EEX-regulation. Most relevant European non-EU member states (Switzerland, Norway, Sweden and Iceland) are a contracting party to the Lugano convention.
The basic rule
The basic rule is that the defendant, regardless of his nationality, shall only be sued before the court where he lives. Parties are free to make a contractual choice of forum, which means that the parties can agree that a court shall (exclusive or non-exclusive) jurisdiction. If parties have made an exclusive choice of forum, they are (as a basic rule) bound to that agreement, and cannot be sued before another court. The EEX-regulation, however, names various alternative grounds for jurisdiction.
Jurisdiction under the EEX-regulation
The EC Regulation always applies if the defendant is domiciled a EU member state, and also if one of the exclusive jurisdiction rules as set down below is involved. As mentioned above, the basic rule (as is the basic rule under both Dutch law and Dutch International Private Law) that the defendant can only be sued before the court where he lives. The EEX-regulation (and, in more or less the same words, the Lugano Convention), however, makes several exceptions this main rule, creating alternative grounds for jurisdiction:
- if the dispute relates to a contract, the defendant can also be sued in “the courts for the place of performance of the obligation in question” (in the case of the sale of goods being: the place in a member state where, under the contract, the goods were delivered or should have been delivered, and in the case of the provision of services, the place in a member state where, under the contract, the services were provided or should have been provided);
- if the dispute relates to tort, the court in the place where the harmful event occurred or may occur shall also have jurisdiction;
- in case a third party is called in an action on a warranty or guarantee or in any other third party proceedings, this party can also be called in the court of the main proceedings;
- if there are more defendant, either defendant can be sued before the court in the place of domicile of one of the other defendants.
The EEX-regulation also contains specific jurisdiction rules on several specific matters (insurance, employment contracts, consumer contracts). It is not always possible to deviate from these specific rules.The EC regulation contains several exclusive jurisdiction rules. The most important are:
- in proceedings on real estate /immovable property, in which cases the courts of the member state where the real estate is located shall have exclusive jurisdiction
- in proceedings on the validity of the constitution, the nullity or the dissolution of companies or other legal persons or of associations of natural or legal persons, or the validity of the decisions of their corporate bodies,
- in proceedings on relating to the registration or validity of patents or trademarks.
These rules cannot be deviated from.
Provisional measures and attachments
The EEX-regulation, however, does not prevent parties from making applications to the courts of other state for provisional or interim measures that may be available under the national rules, even if the courts of another member state have jurisdiction in the proceedings on the merits. Such provisional measures can, under Dutch law, be (for instance) provisional measure requested in summary proceedings, or court leave or intervention with respect to (prejudgment) attachments.
Attachment: creation of forum
It is possible that an attachment on assets located within the Dutch jurisdiction creates jurisdiction in the proceedings on the merits with regards to the claim for which the attachments were affected (the forum arresti). Neither of the parties involved may have any other relation to the Dutch jurisdiction, than the fact that an attaches asset is located in The Netherlands; such attachment is called saise foraine. This rule only applies if the claimant can not obtain a judgment that can be enforced in the Dutch jurisdiction otherwise (and in most cases, such judgment can be obtained). If, however, the parties have agreed on an exclusive jurisdiction clause, appointing a non-Dutch court has jurisdiction (whether the judgment of that court shall be enforceable in The Netherlands or not), the forum arresti shall, as a basic rule, not apply.
Dutch law firm, specialized in litigation
The Dutch litigation lawyers of AMS law firm are specialists in litigation and international civil proceedings. Should you require more information, please contact our lawyer Hidde Reitsma, owner at our law firm. Hidde successfully conducted many proceedings before Dutch Districts Courts and Courts of Appeal, and is considered an expert in international jurisdiction matters. Should you have any question with respect to litigation in The Netherlands, or any related issue, please feel free to contact him.