A recent revision of the EU Brussels I Regulation includes some drastic changes with important implications for owners, charterers and other parties looking to arrest vessels or attach other assets in EU jurisdictions.
The Brussels I Regulation provides uniform rules throughout the European Union on international jurisdiction and the recognition and enforcement of civil and commercial judgments. The revised regulation, which came into effect on January 10 2015, introduces an important change. Under the new regulation, it is now possible to enforce throughout the European Union provisional measures granted on the basis of an ex parte application by a party in any individual member state. The revised regulation effectively makes it possible to attach assets anywhere in the European Union if parties include a choice of forum clause in their contracts that confers jurisdiction on the Rotterdam court.
The Netherlands is widely recognised as a ship arrest haven and its procedural law provides an effective means by which to obtain security in advance of main proceedings against a debtor. Security can be obtained by seizing any of the debtor's assets on the basis of a pre-judgment attachment order. Another option is to levy a third-party attachment which blocks all payments by the third party to the debtor. These pre-judgment attachment orders can be obtained in a matter of hours in case of particular need and can be used to obtain security or to exert pressure on the debtor to make payment and thus avoid starting main proceedings against the debtor.
The new Brussels I Regulation effectively means that the whole of the European Union is now a potential ship arrest haven for parties that initiate action through the Rotterdam court. The only proviso is that the Rotterdam court have jurisdiction on the merits of the claim.
The willingness of the Rotterdam court to allow seizure of assets in EU member states other than the Netherlands was underlined earlier this year when the court granted leave to arrest the pusher-barge Navin 24 in either Germany or Austria in a dispute involving the non-payment of hire under a time charter. Jurisdiction was based on a choice of forum clause in the time-charter, which vested jurisdiction to the Rotterdam court.
Including a choice of forum clause in contracts which confers jurisdiction on the Rotterdam court greatly assists in securing the enforcement of contractual rights against unwilling debtors. The Rotterdam court can, and has shown that it will, issue orders for an arrest not only in the Netherlands but also in other EU member states.
For further information on this topic please contact Haco van der Houven van Oordt or Bart-Jan van het Kaar at AKD by telephone (+31 88 253 50 00) or email (firstname.lastname@example.org or email@example.com). The AKD website can be accessed at www.akd.nl.
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