Before initiating legal proceedings in the Netherlands, it first needs to be considered whether the matter can be submitted to a Dutch court and whether that court will assume jurisdiction. The answer to this question depends on Dutch law (the Code of Civil Proceedings), EU law (EU/EC regulations), and various international treaties. Dutch courts will have international jurisdiction only 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 speaking – the same rules on jurisdiction and enforcement of foreign judgments as under the EEX Regulation. The most relevant European non-EU member states: Switzerland, Norway, Sweden and Iceland, are contracting parties to the Lugano Convention.
The basic rule is that the defendant, regardless of nationality, may only be sued before the court where that defendant is domiciled. Parties are free to make a contractual choice of forum, which means that the parties can agree that a court will have exclusive or non-exclusive jurisdiction. If the parties have made an exclusive choice of forum, they are as a basic rule bound to that agreement, and may not sue one another before another court. The EEX Regulation, however, provides various alternative grounds for jurisdiction.
The EC Regulation always applies if the defendant is domiciled in an EU member state, and also if one of the exclusive jurisdiction rules 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 may only be sued before the court where that defendant is domiciled. The EEX Regulation and, similarly, the Lugano Convention, however, make several exceptions to 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: 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/wrongful act, the court in the place where the harmful event occurred or may occur will also have jurisdiction.
• If 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 is more than one defendant, the defendants can be sued before the court in the place of domicile of one of the defendants.
The EEX Regulation also contains specific rules on jurisdiction on several specific matters, including insurance, employment contracts, and consumer contracts. It is not always possible to deviate from these specific rules. The EC Regulation includes several exclusive rules on jurisdiction. The most important of these rules is that the courts of the member state will have exclusive jurisdiction in:
• proceedings on real estate /immovable property located in that member state
• 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 located in that member state
• proceedings relating to the registration or validity of patents or trademarks effective in that member state.
These rules may not be deviated from.
The EEX Regulation, however, does not prevent parties from making applications to the courts of other states for provisional or interim measures that may be available under 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 a provisional measure requested in summary proceedings, or court leave or intervention with respect to a pre-judgment attachment or a conservatory arrest.
An attachment on assets located within the jurisdiction of the Netherlands may create jurisdiction in the proceedings on the merits with regard to the claim for which an attachment was levied (forum arresti). When none of the parties involved has any other relation to the jurisdiction of the Netherlands except for the fact that an attached asset is located in the Netherlands, such attachment is called saise foraine. This rule only applies if the claimant is unable to obtain a judgment that can be enforced in the jurisdiction of the Netherlands. If, however, the parties agreed an exclusive jurisdiction clause that designates that a non-Dutch court has jurisdiction (regardless of whether the judgment of that court will be enforceable in the Netherlands or not), the forum arresti will not, as a basic rule, apply.
AMS, based in Amsterdam, the Netherlands, is conveniently located near Schiphol Airport (10 minutes by car or train). Our team of litigation lawyers provides legal services in the Netherlands for clients around the world and has in-depth advisory and litigating experience acting on behalf of Dutch and international corporates and private individuals.
AMS partner Hidde Reitsma is a specialist in international jurisdiction matters and has successfully conducted many proceedings before Dutch districts courts and courts of appeal.