Tag Archives: attorney

Dutch Supreme Court rules is favour of Samsung

Samsung has not infringed the patent op Apple with its table computers according tot the Supreme Court in the Netherlands is a decision of May, 31, 2013. Apple submitted that the Galaxy Tab 10.1v infringed its European patent on the Ipad tablet. The lawyers of Samsung were successfull in fighting the claim op Apple. In the earlier judgment of the District Court and the Court of Appeal the claim of Apple was also ruled out. In several other European countries Apple has also started infringement proceedings.
Samsung Galaxy Tab
According the Courts in the Netherlands the Apple design only has a character of its own to a limited extent. The elements of the design already exist in products that were marketed previously by others. Therefor the scope of legal protection of the design is limited. Various parts of the Samsung tablets are distinct and noticable for users. The Supreme Court confirmed the judgement of the appeal Judge.

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Multinational Holdings in the Netherlands

The Netherlands are the ideal domicile for companies that operate globally. The good fiscal climate in Holland exists especially because of the large amount of tax treaties entered into with other countries. Therefor Holland has an advantage over other countries offering competitive tax schemes. Companies like Cisco, HP, Tesla, Dtek, Abbott, as well as international artists like The Rolling Stones and U2 have found a safe haven for their holdings in the Netherlands, very often in Amsterdam. Several  law firms and tax advisers that can facilitate the holding companies.
Holding Companies in the Netherlands

The organistation promoting the Dutch fiscal climate is the Netherlands Foreign Investment Agency (NFIA). The agency also promotes the advantage for international companies to obtain tax rulings with the Dutch tax Authority. Tax lawyers can negotiate a tax  ruling to establish which part of the profits of a company is subject to tax in the Netherlands.

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Yacht building in The Netherlands

The Netherlands have a serious marine maritime history, which has developed in substantial yacht building industry. The Dutch built excellent motor yachts and sailing yachts of the highest quality. This has put The Netherlands in the lead in the production of super yachts and building of custom built yachts.

Yachting Lawyer Netherlands

Dutch yards have gained World Fame

Some well-known Dutch yacht builders are Amels, Royal Huisman, Vitters, Claassen, Dedship and Royal Van Lent. Dutch Yacht Designers are also present in the world of super yacht design. The non-EU citizens and corporations can have a yacht built in Holland against zero VAT tax rate under the condition the yacht is exported directly outside the EU.

Project management at Dutch yards

The owner can have himself represented by a project manager in Holland, that supervises the building of the yacht. A Project manager when building aYacht in the Netherlands is great support for the Owner who resides abroad. Our firm in Amsterdam has been involved in contracts for yacht building in The Netherlands, including some super yachts. A proper yacht building contract is necessary.

Top Yachting Contract for Great Designs

The owner should be protected against financial problems of the yard, bankruptcy, suspension of payment, arrest on the yacht, et cetera. Other subject to cover are warranties, limitation of liabilities, extra orders, change orders, insurance, certificates, et cetera. The yacht contract should protect the owner financially for his investments in the yacht. The owner should obtain ownership of all parts and components the yard orders for the yacht.

Security Provisons in Yachtbuilding Contract

The ownership of the hull and unfinished yacht should also be vested in the owner as soon as possible. When necessary, a security right can be established on the unfinished yacht at the yard. Because of the peculiarities of Dutch law, it is important to instruct a lawyer in the Netherlands to review any contract the owner enters into. Dutch contract law is not similar to anglo-saxon contract law, although the differences should not be exaggerated. As a Dutch Yachting Lawyer I can help you out there.

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Preliminary Relief Proceedings: Quick Judgment of Dutch Judge

Preliminary Judgment Dutch Court

In urgent matters the president of the competent district court (voorzieningenrechter) can file for preliminary relief. The proceedings are called “kort geding “. A writ of summons can be issued at short notice. One court hearing will take place and usually the judge will decide within one or two weeks.

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Injunction in urgent matter in the Netherlands

It is a prerequisite that the matter requires an immediate provisional remedy. Only provisional measures can be granted by the judge. The facts of the matter should not be too complicated for such proceedings. If the case is too complicated, the judge will deny the relieve requested and parties will be referred to main proceedings. The judgment allowing preliminary relief does not prejudice the main proceedings. Therefore judgment in the main proceedings may be quite different than provisional judgment.

Remedies in Dutch Court

The available remedies are usually a prohibitory injunction (verbod in kort geding) or a mandatory injunction (gebod in kort geding). Usually the claimant will also request the judge to include a penalty in the judgment for each day the defendant fails to comply with the judgment.
Provisional remedies can also be requested for monetary claims and debt collection. The judge will investigate whether the claim is strong and if the facts and circumstances required an immediate provisional judgment. The risk of repayment will also be assessed.

Summary judgment by Netherlands Court

The Dutch attorney for the claimant will request a date for the court hearing. As soon as the date is fixed, the writ of summons will be issued and the defendant is not obliged to file a defense before the date of the court hearing. The defendant may defend itself orally at the court hearing. Documents should be filed by the defense 24 hours before the court hearing.

The normal rules of evidence do not apply in preliminary relief proceedings. The summary proceedings are not intended for examination of witnesses. The judge may, however, ask questions to people present at the hearing.

Appeal from Dutch Judgment

Within four weeks from the date of the judgment parties can appeal with the court of appeal. In the appeal both parties have to submit written statements. Only if requested by one of the parties an oral hearing takes place.

The judgment can be enforced immediately in appeal by the defendant and does not suspend the judgment.

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Pre-trail discovery in the Netherlands

Disclosure in Dutch Court Procedures

Pre-trial discovery works different in the Netherlands then e.g. the US of UK. It is possible to hear witnesses, obtain proof from other parties, get experts appointed by the Dutch Court, et cetera. A Dutch attorney can organize the pre-trial discovery in the Netherlands.

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Getting Witnesses to Court in the Netherlands

Article 162 of The Dutch Code of Civil Proceedings gives the possibility of the provisional examination (preliminary hearing) of witnesses. This means that the Dutch attorney of any party can call witnesses to the court to be heard, before it decides to commence legal proceedings against an other party. By doing so, this party will have the opportunity to estimate – on the basis of the statements of the witnesses – its chances in legal proceedings, and to decide whether or not to commence legal proceedings. Within the frame of these preliminary hearings, the court can be requested to order the other party to have its accounts, records and documents inspected by an independent external expert (e.g. a certified auditor or accountant).

Appointing Dutch Court Expert

The Court can also appoint an expert do initiate pre-trial expertise.  A Dutch attorney can file a request for this appointment of an expert. To obtain appointment of the expert by the Court it is not necessary that  a claim is filed or a procedure is already pending. It may be important to obtain expert evidence. Dutch Courts tend to follow the report of expert appointed by teh Court.

Dutch Court Order for Investigation

The Dutch Code of Civil Proceedings does not know proceedings to get pre-trial inspection of accounts, records and documents (electronic records and documents included). According to the law, such an inspection can only take place during legal proceedings. However, if evidence (documents, records, bank statements, e-mails et cetera) is kept by a party and the plaintiff has a legitimate interest to obtain this evidence then  Article 843a of the Dutch Code of Civil Proceedings allows summary proceedings to obtain a court order for obtaining (copies of) this evidence.

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International jurisdiction Dutch Court over civil and commercial claims

International jurisdiction Netherlands Court over civil and commercial matters (principal rule)

A Dutch attorney can file claims with the Dutch Courts based on property law, the law of obligations, the law of contracts, the law of tort or on intellectual property rights. The claim has to be brought before a Dutch court by filing a Writ of Summons at the Registry of the court.  In the  Writ of Summons the defendant is invited to appear in the Dutch Court on a specific day.

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The Dutch court has jurisdiction if the defendant has his domicile or habitual residence in the Netherlands (the ‘forum rei’ rule). The domicile and habitual residence of commercial partnerships and legal persons are the Municipality that is appointed as seat of the commercial partnership or legal person and the place where its head office is actually located, respectively.

International jurisdiction Dutch Court over civil and commercial matters (alternative rules)

The Duch Code of Civil Procedure offers alternative criteria for jurisdiction with regard to legal proceedings initiated by a Writ of Summons, regardless of the domicile or habitual residence of the defendant. These criteria independently create  jurisdiction with the Dutch court has jurisdiction. These rules determine legal claim is linked in such a way to the territory of the Netherlands that jurisdiction of the Dutch court is justified.

Filing a Claim with Dutch Court

The Dutch attorney can also file a claim with the Court in the Netherlands in matters concerning:

  • contractual obligations, that have been performed or must be performed in the Netherlands;
  • an individual employment agreement or an agency agreement if the work is or used to be performed in The Netherlands;
  • an individual employment contract, if the work is performed temporarily in The Netherlands, concerning rights of action with regard to conditions of employment and labour conditions referred to in Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services.
  • consumer contracs involving a consumer who has his domicile or habitual residence in the Netherlands and an opposite party who pursues commercial activities or his trade of profession (also) in the Netherlands;
  • obligations arisen from a tortious act, if the event that has caused the damage has taken place or may take place in the Netherlands;
  • real property rights in, as well as lease and farm lease agreements to immovable things located in the Netherlands (however, not over claims derived from a sale agreement with regard to immovable property in the Netherlands);
  • estates of a deceased natural person, if the last domicile or last habitual residence of the deceased was located in the Netherlands;
  • the validity, nullity or dissolution of commercial partnerships and legal persons established in the Netherlands;
  • legal claims and issues related to a bankruptcy, suspension of payment under a moratorium or the Debt Repayment Scheme for Natural Persons that has been proclaimed or granted in the Netherlands.

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A word on general conditions under Dutch law

A Dutch lawyer can inform you on  specific rules for general terms and conditions used by companies. Some rules are inspired by European regulations.The Dutch Civil Code contains explicit mandatory provisions governing the use of standardized terms.

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Standard Clauses in Dutch Contracts

Whether or not clauses contained in standardized terms are enforceable under Dutch law, depends on the nature of the party against whom the terms may be enforced, more specifically whether that party is a large entrepreneur, a small entrepreneur or a consumer.

Protection against unfair contract terms

If at the time of the conclusion of the contract, the other party is a legal entity that has published its annual accounts or has fifty or more employees, it qualifies as a “large entrepreneur.” The provisions relating to standardized terms do not protect such “large entrepreneur.” In case of a large entrepreneur as a contractual counterpart, the answer to the question whether contract clauses (either individually made or contained in standardized terms) are enforceable, depends on the test of reasonableness and fairness.

Void conditions in Dutch agreements

That’s a vague criterion, but it has overriding effect in Dutch law. With respect to other entrepreneurs, a standardized term may be voidable in view of the nature of the remaining contents of the contract, the way in which the standardized terms came into existence, the mutually known interests of the parties and the other circumstances of the case, it is unreasonably onerous for the other party, or if the enforcing party did not offer to the other party a reasonable possibility to be informed of the standardized terms.These two criteria resemble the foreign (i.e. non-Dutch) concept of unconscionability.

Black-listed clauses in Dutch Civil Code

For consumers, the Dutch Civil Code contains a so-called “grey list ” and a “black list” of provisions that are deemed unreasonably onerous when contained in contracts. The statutory provisions containing the black list and grey list can also effect non-consumer contracts, which is why I decided to briefly mention this in this e-mail.

A party who supplies good or services to a consumer may “get stuck” between the consumer and a preceding party, with whom he contracted in respect of the same goods or services, in that a clause in the consumer contract is subject to avoidance based on the black list or the grey list, whereas a similar clause in the contract with the preceding party is not.

In such a case the clause in the contract with the preceding party can also be avoided, if relying on that clause would be unreasonable because of the close connection with a clause contained in standardized terms that has been avoided.

Of relevance may also be article 6:247.2 of the Dutch Civil Code, which regulates that if both parties are entrepreneurs, but not both established in The Netherlands, then the provisions concerning standardized terms (say: the grey and black lists) are not applicable. This is basic knowlegde for a Dutch solicitor so don’t hesitate to mail me any questions you may have.

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