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Jurisdiction of Dutch courts. International and national managing directors

A boring and technical matter, but very relevant for international and resident managing directors. The Amsterdam district court held recently that it was not the competent court to rule on the alleged USD 308,800,000 liability of a Dutch main defendant (a B.V.) due to an arbitrage-understanding between that B.V. and the claimant. As a result – of this B.V. not qualifying as a so-called “ankergedaagde” – the court could also not assume competence to rule on the liability of foreign defendants including several foreign managing directors. Those alleged claims need to be judged either by arbitration or elsewhere.

However, the two remaining defendants, Dutch resident managing directors (referred to as Trustdirectors in the judgment) could not make use of the same technical exemptions. Therewith the court shall probably have to decide on their position soon on the merits of the case. The court added that the competence of the court to rule on their liability, did not make them a “ankergedaagde” for the claims against the others vice versa.

Questions about “ankergedaagden” are not only relevant for these and other types of commercial disputes, but increasingly so for climate and environmental related disputes. It must be an awkward sensation for international groups of companies that predominantly have been attracted by the Netherlands as an international tax-hub to save costs, to have to spend time in assessing their substance and additional liabilities as a consequence of that attraction. The latter assessments being necessary everywhere, it must be added. “Ankergedaagde”-disputes are likely here – and there – to stay for a while.