Gerechtshof Arnhem-Leeuwarden; 2015-02-17; X; Saudi Aramco; 200.133.097-01
Decision by national courts in the field of European Union law — ECLI:NL:GHARL:2015:1148
Date: 2015-02-17
Subject matter: Judicial cooperation in civil matters
Origin: Netherlands

82015NL0217(51)_ENG_SUMJURE
JURE summary
JURE summary
Conflict of jurisdiction – Article 6 of the Wetboek van Burgerlijke Rechtsvordering (Rv, Code of Civil Procedure)
Forum rei: The grounds of international jurisdiction, contained in Article 6 of the Rv, were taken by the legislator from Article 5 of the Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (“Brussels I Regulation”), so the Dutch court may, in its interpretation of Article 6 of the Rv, use the case-law (and explanations used therein) of the Court of Justice of the European Union (EM, Parl Gesch Herz RV, p 102-103). The Brussels I Regulation is (formally) not applicable because the defendant is not domiciled within the territory of a state governed by the Brussels I Regulation.
Forum contractus: In accordance with Article 6(a) of the Rv, the Dutch court is, in cases concerning contractual obligations, internationally competent, if the obligation in question was performed or is to be performed in the Netherlands. Pursuant to Article 6(a) of the Rv, unless otherwise agreed, the place of performance of the obligation in the case of the sale of goods is the Netherlands where, under the contract, the goods were delivered or should have been delivered.
Forum delicti: In the opinion of the Hof, taking into account the explanations given by the Court of Justice of the European Union in its judgment of 6 October 1976, Case 14-76 (De Bloos/Bouyer, Jur. 1976, 1497, NJ 1977, 170) and in connection with Article 5(1) of the Brussels I Regulation, the alternative compensation shall be considered as “contractual obligation” within the meaning of Article 6(a) of Rv. “Contractual obligations” are not only those arising directly out of the contract, such as the obligation of delivery or payment, but it covers also obligations in the area of unperformed contractual obligations, such as the obligation to pay compensation. The distinction between the concepts of “contractual obligations” and “tort, delict or quasi-delict”, as set out in Article 5(1)(a) and Article 5(3) of the Brussels I Regulation, was cited by the Court of Justice of the European Union in response to the question laid down within the reference for a preliminary ruling (case C-548/12 of 13 March 2014). The unlawful action of which the appellant accused the respondent – namely the unlawful termination of a long-term cooperation – is an action which cannot be considered as not concerning “matters relating to a contract” but, on the contrary, is reasonably based on the rights and obligations arising from contract, which makes it’s taking into account indispensable in deciding the dispute. Therefore, it is a contractual obligation within the meaning of Article 6(a) of the Rv and not delictual obligation within the meaning of Article 6(e) of the Rv.
Forum necessitatis: In the light of reasoned objection by the respondent, the appellant did not sufficiently prove that the judicial process concerning trade disputes in Saudi Arabia, as in the current one, does not meet the minimum requirements of a due process and that the Western company would be disadvantaged in comparison to Saudi companies.
Forum arresti: Forum arresti interferes with the basic principles of the forum rei. For that reason, Article 767 of the Rv applies with restraints. The purpose of the last sentence of this Article is to avoid abuse: to avoid a situation when jurisdiction established by a garnishee becomes ineffective because the third party neither owes anything to the debtor nor has anything of the debtor in possession.