Rechtbank Amsterdam (District Court of Amsterdam), 30 January 2020

At a glance

Parties

[Claimant] (anonymised) v. [Defendant 1] B.V. and [Defendant 2] B.V. (anonymised), with [Intervening party] B.V. joined on the defendants' side

Case no.

C/13/677500 KG ZA 19-1314 (ECLI:NL:RBAMS:2020:2124)

Court

Rechtbank Amsterdam (District Court of Amsterdam), preliminary relief judge (kort geding)

Forum and rules

Dutch summary proceedings; the contract provided for ICC arbitration in Paris under Dutch law

Treaty

Arbitration clause in Article 22 of the Term Sheet of 28 September 2018

Court

R.A. Dudok van Heel (preliminary relief judge)

Sector

Venture investment; share buy-back

Outcome

The court held it had jurisdiction despite the ICC arbitration clause and ordered the defendants, jointly and severally, to pay the buy-back price.

Amount

Claimed: EUR 953,233 plus statutory interest, EUR 6,541.17 extrajudicial collection costs and EUR 2,098.86 attachment costs. Awarded: EUR 953,233 plus statutory interest, EUR 2,098.86 attachment costs and EUR 5,764.47 procedural costs. Collection costs refused.

The dispute

Under a Term Sheet of 28 September 2018, the claimant bought 1,667 shares in the intervening party from Defendant 1 for EUR 953,233. The aim was a planned cooperation between the claimant and the intervening party. Article 6 gave the claimant a put option to sell the shares back to Defendant 1 at the purchase price, and Defendant 2 guaranteed payment. Article 22 provided for Dutch law and ICC arbitration in Paris. The claimant exercised the option in time, but Defendants 1 and 2 did not pay by 10 October 2019, saying they lacked the funds. The claimant obtained pre-judgment attachments, started ICC arbitration on 22 November 2019, and then sought payment in Dutch summary proceedings. The defendants argued that the court lacked jurisdiction under Article 1074d of the Dutch Code of Civil Procedure (Rv), because an ICC emergency arbitrator could have given timely and enforceable relief. They also argued that there was no urgency, and they relied on a future counterclaim for broken-off negotiations.

Key holdings

1. The court must examine its own jurisdiction of its own motion. Whether it has jurisdiction therefore does not depend on which party bears the burden of pleading and proof. ¶ 4.1
2. The ICC expedited procedure (Article 30 of the ICC Rules) is available in principle, but it cannot produce a decision "in time" within the meaning of Article 1074d Rv. It therefore does not bar the court's jurisdiction. ¶ 4.2
3. An emergency arbitrator's order under Article 29 of the ICC Rules can be obtained in time, but it is not a full alternative to a summary judgment. Being binding on the parties is not enough; an exequatur must be available. Relying on legal writing (Snijders; Schouten and Stevens), the court found that an order to collect a monetary claim is not open to enforcement. The court therefore had jurisdiction. ¶¶ 4.3–4.4
4. The court did not follow the unpublished judgment of the Hague Court of Appeal of 28 February 2017. Even if such an order could be enforced, an order made in Paris would need leave from the court of appeal under Articles 1075 and 985 Rv. That exequatur procedure is adversarial, not ex parte, so the emergency route is not a timely and full alternative. ¶ 4.4
5. The claim was granted. The defendants admitted the option had been validly exercised and that they owed repayment. The claimant showed urgency: one of its shareholders had a claim against it that it could not meet while the defendants were in default. The defendants' lack of funds and their alleged counterclaim, which was too uncertain, did not bar the claim. ¶¶ 4.5–4.8
6. Extrajudicial collection costs were refused and attachment costs were allowed. Defendants 1 and 2 must pay procedural costs of EUR 5,764.47. No costs order was made against the intervening party. The judgment is provisionally enforceable. ¶¶ 4.10–4.12, 5.1–5.6

Procedural history

1. 28 September 2018Term Sheet concluded and shares delivered by notarial deed; the purchase price was paid on 1 October 2018.
2. 10 October 2019Deadline for the buy-back after the claimant exercised its put option; no payment was made.
3. 28–29 October 2019The court gave leave for pre-judgment (third-party) attachment, with the claim estimated at EUR 1,173,000. The attachments were made on 29 October 2019.
4. 22 November 2019The claimant filed a request for ICC arbitration in Paris.
5. 8 January 2020The claimant summoned the defendants in summary proceedings. The oral hearing took place on 16 January 2020, and the intervening party was allowed to join.
6. 30 January 2020Summary judgment: the court accepted jurisdiction and ordered payment of EUR 953,233 plus interest and costs.

Tribunal, counsel and experts

Decided by

• R.A. Dudok van Heel Judge, Rechtbank Amsterdam

Experts

R. Schellaars (claimant) · B. van Zelst (claimant)

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Keywords

• emergency arbitrator
• ICC Rules Article 29
• expedited procedure
• kort geding
• summary proceedings
• Article 1074d Rv
• jurisdiction despite arbitration clause
• interim relief
• enforceability of emergency orders
• exequatur
• New York Convention
• put option
• share buy-back
• Term Sheet
• pre-judgment attachment
• ICC arbitration Paris

Summary generated with AI from the published documents — refer to the award for the authoritative text.