Tag: Amsterdam

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Ordre Public in Bankruptcy. The Dutch Supreme Court confirms non-recognition of Yukos liquidation order.

The Dutch Supreme Court late in January has confirmed the lower court’s decision (see my report here) in Yukos, not to recognise the Russian liquidation order of 1 August 2006 regarding OAO Yukos Oil Company. The decision to recognise or not evidently is based on residuary Dutch conflict of laws (the Insolvency Regulation is not engaged).

At 4.1.3 the Supreme Court emphasises that the principle of mutual trust does not apply, as it would do between EU jurisdictions. It then does not perform the entire ordre public exercise from scratch, rather assesses whether the lower court properly carried out said analysis (as befits its role as a Supreme Court). Which it finds, the Court of Appeals did. Its ordre public check did not in the abstract test Russian court proceedings, rather tested whether the precise conduct of all involved parties led to use of the judicial system in a way which compromises the core Dutch legal order (see for more detail on that, my earlier post).

Textbook ordre public.

Geert.

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Booze bikes banned from Amsterdam. Time for a pousse-cafe: the EU law analysis that never was.

At the end of October the Rechtbank Amsterdam held that ‘booze bikes’ can be kept from parts of Amsterdam. The municipality had resorted to the ban both to address congestion (the bikes are slow and chunky; the roads in the part of Amsterdam concerned, narrow) and rowdiness (the bikes are often used for stag parties and let’s just say that the ‘bike’ part of the trip is not the one that attracts its users). In my experience (from a resident’s point of view) these bikes are a bit like Brexit: attractive for five minutes to some; a right nuisance for the remainder of the journey.

In 2009 I wrote a short piece reflecting on use restrictions from an EU point of view. In it I refer ia to C-142/05 Mickelsson and to C-110/05 Commission v Italy (motorcyle trailers) – my analysis and that of Peter Oliver may be applied here mutatis mutandis. The degree to which lawfully marketed products may be restricted in their use has so far not entertained the Court of Justice in great numbers. Yet the use of such restrictions is bound to increase, with local authorities in particular imposing restrictions for environmental, public health and other ‘sustainable development’ purposes. Witness e.g. Venice banning wheeled suitcases, historic city centres banning diesel cars etc.

In the booze bike case the Court at Amsterdam (at 2.9) simply said that applicants should have provided detail of their argument as to why the ban might contravene EU law. Expect a second round on similar cases at some point.

Geert.

 

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Ordre Public in Bankruptcy. The Amsterdam Court of Appeals in Yukos.

Michael Broeders and Ulrike Verboom have excellent overview of the decision back in May by the Amsterdam Court of Appeal not to recognise the Russian liquidation order of 1 August 2006 regarding OAO Yukos Oil Company. The refusal to recognise is based on ordre public: in particular, a finding was made that the Russian order contravenes the principles of due process hence also ordre public. Reference was made in extenso to decisions by the European Court of Human rights against Russia in related cases in 2011 and 2014.

Michael and Ulrike also refer to previous case-law of the Dutch Supreme Court which held that on the basis of the lex concursus (here: Russian), there is no principled objection to the Russian trustee in bankruptcy to exercise his powers as such trustee in The Netherlands.

Geert.

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The Trafigura litigation continues: Dutch court accepts jurisdiction but denies standing to victims’ association.

I have in the past reported fleetingly about the Trafigura litigation, in which the company is and has been pursued in various jurisdictions for the environmental and public health damage resulting from the dumping in Abidjan, Ivory Coast’s capita, of toxic waste originating from the Probo Koala. I discuss the corporate social responsibility implications of conflict of laws ia here.

The case has led ia to the so-called ‘Leigh Day settlement’ in the United Kingdom (representing 30.000 victims) and to a 2007 ‘Protocole d’Accord’ between Trafigura and Ivory coast.

Current judgment was issued on 30 November and involves Stichting Union des Victimes de Déchets Toxiques D`Abidjan et Banlieues, a foundation set up in accordance with Dutch law, claiming to represent victims not yet represented in the Leigh Day settlement.

The Dutch court first of all swiftly rejects any impact of the choice of court clause included in the 2007 protocol. This discussion could have been quite interesting, however the Court suffices with a reference to the narrow formulation of the clause. It refers to any and all issues arising out of the validity, application and interpretation of the agreement. The agreement being a contractual arrangement and the suit here being based on liability in tort, in an action started by victims not party to the agreement, the court at Amsterdam suffices with the remark that current case is evidently not covered by the clause.

This leaves aside the discussion on the merits with respect to that choice of court. The 2007 protocol was signed by Ivory Coast ‘for and on behalf of all victims of the toxic wastes’. Whether the State can legitimately bind all those victims, particularly since presumably not all of them are Ivory Coast nationals, requires a lex causae to settle. Were this to follow the Brussels I Recast rule (the case looks to have been introduced after January 2015), this would imply a discussion on the inclusion of choice of court ex-EU. Over and above that discussion, the Court at Amsterdam would then have to discuss whether perhaps ordre public protests against allowing a State to represent all victims in cases such as these.

Having dismissed (again, all too briefly) choice of court, the court subsequently upholds jurisdiction on the basis of Article 4 Brussels I Recast: the Dutch domicile of Trafigura Beheer BV.

In the remainder of the assessment of jurisdiction and standing, the Court applies Dutch law (de Stichting has been set up under Dutch law) and finds ultimately that the personal, business interests of its creator are not sufficiently split from the interests of the victims which the foundation purports to represent. The court adds that the Stichting would not seem properly to manage its documentation etc., leaving doubt as to whether it is properly equipped to attain its objective.

The suit is therefore dismissed on standing.

An interesting judgment to kick-start all sorts of issues of relevance to corporate social responsibility.

Geert.

(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.9.2, Chapter 8, Heading 8.3.

 

 

 

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Corporate Social Resonsibility used as stick and carrot – Court Amsterdam

End 2011, the Gerechtshof Amsterdam issued a further ruling in the long-running Trafigura case (exports of wastes, Ivory coast). I am restricted from commenting on the waste law merits of the case however it is interesting to note that the court employed CSR both as carrot and stick in determining punishment. As a stick: companies with a level of sophistication as Trafigura ought to organise themselves to be aware of the legal implications of their production process. As a carrot: the foundation created by the company supports global CSR projects, which merits a certain amount of leniency. As far as I am aware, this was the first time that CSR was used in such specific manner in court.

Geert.

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