Koksokhimtrans v Cool Consulting. The Dutch SC on E-mail proof and dispute resolution.

An interesting exchange with fellow practitioners on Twitter yesterday reminded me of this post which I have had in the draft folder since some time in June.  Back in February, the  Dutch SC confirmed the approach of the lower courts and the Court of Appeal on the correct approach to e-mail evidence and the existence of specific dispute resolution clauses. Here: an agreement to arbitration. The result is that a London-issued arbitral award cannot be enforced in The Netherlands.

When I flagged the case on Linked-in in June I observed there were two approaches to the judgment. Some emphasise the Courts’ refusal to recognise the validity of the agreement to arbitrate made by e-mail, in the face of what is common and very informal practice in the shipping industry /charterparty; others point more practically to parties having to be prepared to prove the authenticity of electronic correspondence.

Defendant did not enter an appearance but the lower Court in earlier ruling was alarmed by the print-out of e-mails allegedly containing the ‘agreement’ in the charterparty looking dodgy (there were for instance various white blots). It proprio motu pursued originality research. In subsequent rulings confirmed and completed by the Court of Appeal, the courts were not satisfied by the originality research, among others because the claimant’s ‘independent’ expert was an ICT employee with the law firm involved in the case.

Procureur Generaal Vlas with the Hoge Raad in his Opinion in December 2019, discussed the slight differences between the 1958 New York Convention and the Dutch law on the evidence required (with the Dutch rules in fact being more relaxed), and the nature and content of guidelines issued for the interpretation of the Convention. He advised to follow the lower court’s approach not because of some grand statement in principle but rather because he could not see fault in the courts’ factual observation of lack of independent and objective proof of authenticity. The Supreme Court followed in the most succinct of ways, without justifying rejection of the appeal. It is entitled to do so in cases where its findings have no impact on the unity in application of the law, indicating that the factual observations swayed the SC.

‘Before e-mail’ (my kids would respond to that ‘yes dad, when you got to work on horse and cart’) printers and warehouse assistants where a key link in the chain of general terms and conditions – GTCs. They needed to ensure the right content ended up on the right printed, blank order forms, and ended up with the right wholesalers, sales agents etc. – to be repeated every single time these GTCs were amended; and many a litigation has begun with sales agents continuing to use old forms ‘because it would be a shame to throw all that paper’. Fast forward to electronic correspondence, and website managers and general ICT staff have now assumed that role. In the context of any dispute resolution, they need to ensure everyone has the right e-mail footer, properly functioning link to the right version of the GTCs on the website, etc. They also need to have protocols in place to ensure authentication is thought of proactively. Lack of such proper electronic housekeeping leads to results no different than when sales agents continued to use the old paper forms.




Separable, but not that separate. The Irish High Court in C&F Green Energy on settling applicable law as a preliminary issue.

The procedural context of C&F Green Energy v Bakker Magnetic BV is an attempt at making the courts preliminarily decide the isuse of applicable law to the contract between the parties. Gearóid Carey  explains the Irish civil procedure context here. In this posting I just want to flag one or two Rome I/II issues.

Plaintiffs (an Irish company), wind turbine manufacturers, seek declaratory relief and damages arising out of an alleged breach of contract and negligence on the part of the defendant in connection with the supply of magnets to the plaintiffs for use in the turbines. Defendant denies liability and has counterclaimed in respect of unpaid invoices and loss of profit.

The issue sought to be resolved at a preliminary hearing is whether it is Irish or Dutch law which governs the contract and should be applied by the court when the case comes on for full hearing. It was not for the High Court to determine the applicable law issue at this stage but rather to decide whether this crucial issue is to be decided at a preliminary hearing or whether it should be dealt with as one of the issues at the trial. Hedigan J decided it should be the latter. He dismissed i.a. the argument that much time will be saved because the parties will only have to prepare the case on the basis of one applicable law whatever the result of the preliminary issue, as ‘a little overblown’: expert opinion of one or two Dutch lawyers may be sought, however the facts of the case once the applicable law issue is settled, ought not to be overly complicated.

What interests me here is the ease with which, wrongly, the Court (however presumably just paraphrasing counsel at this point) applies the cascade or waterfall of Article 4 Rome I.  Parties’ views on applicable law are summarised in the judgment as follows: (at 5.2-5.3)

‘The defendant argues that the issue is a very discrete question of law relatively easily established. It argues that pursuant to Article 3.1 of the Rome I Regulation, a contract shall be governed by the law chosen by the parties. It argues that the defendant’s general conditions of sale were incorporated into the contract because of their attachment to a series of quotations delivered by email and their inclusion in their order confirmation forms. Thus, Dutch law was chosen by the parties to govern their contract. It argues that if they succeed on this point then little remains to be decided because certain clear time limits will apply and these, they claim, have clearly not been met….

The plaintiffs argue that it is not Article 3 but Article 4(3) of the Rome I Regulation that should apply. This Article provides that it is the law of the country most closely connected to the contract that shall apply. Although Article 4 provides for the applicable law only in the absence of a choice of law, the plaintiff argues that this Article will fall to be considered if they can establish that the orders for the goods were not, in fact, made subject to the condition importing Dutch law. In this regard, they characterised the emails relied upon by the defendant as merely pre-contract correspondence. They will rely upon the evidence of the parties to demonstrate that Dutch law was never accepted as the law of the contract. They will argue that the choice of law should be determined pursuant to Article 4(3) by an examination of all the numerous connections between the contract and Ireland. This, they argue, will involve a consideration of all the evidence of the negotiations that took place between the parties. In relation to their claim in tort, they argue that the general rule under Rome II Article 4(1)(i) should apply i.e. the law of the country where the damage occurred. They argue that Article 4(3) of Rome II further brings into play evidence as to manifest proximity. Both of these, they argue, will involve evidence of the parties.’

Which of these will prevail will now be settled at trial stage. Defendant will have to show that what it refers to as the pre-contractual quotations of its general conditions of sale, seemingly by e-mails and eventually in the confirmation forms, amounts to a choice of law clearly established, per Article 3(1) Rome I.  There is considerable case-law on the mirror issue of choice of Court under Brussels I, also in an e-mail context (see e.g. here) however  to what degree one can simply apply the same principles to choice of law, is not clearly established in case-law.

An interesting point is that the Court (and counsel with it, one presumes) jumps straight to Article 4(3) Rome I should choice of law per Article 3(1 not be clearly established. Article 4(3) however is the escape clause (referred to by Hedigan J as ‘manifest proximity’), which must only apply in exceptional circumstance. The correct next steps following failure to establish clearly established choice of law, are firstly the assumptions made under Article 4(1)  (Article 4(1) (a) would seem most obvious here); should that fail, Article 4(2)’s characteristic performance test; and failing that, Article 4(4)s ‘proper law of the contract’ consideration. Article 4(3) only corrects Article 4(1) or (2)s more mechanical (‘objective’ as it is also called) choice of law determination. The judgment mixes Article 4(3)’s ultimate and exceptional correction, with the proper law of the contract test.

My concerns here should likewise not be overblown. Actual determination of the applicable law was not the court’s task. However now that the issue goes back to trial, correct application of Rome I must be made.