The District Court of Amsterdam recently found itself competent to rule on damages claims against the non-Dutch participants of a sodium chlorate cartel through anchor defendant Akzo Nobel. The arbitration and choice of forum clauses laid down in the customer contracts did not alter this. According to the court, the scope of these contractual clauses was not so broad as to include claims arising from competition law violations. Companies should thus keep in mind that they cannot always rely on these clauses in cartel damages claims.
The litigation vehicle Cartel Damage Claims (CDC) initiated damages claims against Akzo Nobel, Eka and Kemira following the European Commission's decision(1) regarding a sodium chlorate cartel. Akzo Nobel is domiciled in the Netherlands, whereas the other two defendants are located in Sweden and Finland. The court(2) found itself competent to rule on the damages claims against all three companies because it considered the claims to be sufficiently closely connected.
As a general rule, Dutch courts have jurisdiction if the natural or legal person sued is domiciled in the Netherlands. Where there are several defendants and the Dutch courts have jurisdiction because at least one of these is domiciled in the Netherlands, jurisdiction is awarded with respect to the other defendants, provided that the claims are so closely connected that it is expedient to handle these cases jointly in order to avoid the risk of irreconcilable judgments resulting from separate proceedings.
The court ruled that it had jurisdiction over CDC's damages claim against Akzo Nobel, Eka's parent company, because it is domiciled in the Netherlands. It considered the claims against the other two defendants sufficiently closely connected for it to assess them jointly because they were based on the same situation of law and fact. According to the court, Eka and Kemira participated in the same market distortion and each cartel member was civilly jointly and severally liable for the damage caused by the cartel. The court rejected the defendants' argument that it lacked jurisdiction given the choice of forum and arbitration clauses laid down in the contracts concluded with their customers. The court held that the scope of these contractual clauses was not so broad as to include claims arising from competition law violations. Customers could not reasonably expect that disputes relating to (secret) anti-competitive behaviour would be covered by them.
Companies should thus keep in mind that they cannot always rely on a choice of forum and arbitration clauses as regards cartel damages claims.
For further information on this topic please contact Jolling De Pree, Erik H Pijnacker Hordijk or Jaap de Keijzer at De Brauw Blackstone Westbroek by telephone (+31 70 328 53 28), fax (+31 70 328 53 25) or email (firstname.lastname@example.org, email@example.com or firstname.lastname@example.org). The De Brauw Blackstone Westbroek website can be accessed atwww.debrauw.com.
(2) See http://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:RBAMS:2014:3190 (in Dutch).