Arrondissementsrechtbank Amsterdam, uitspraak van 13/03/1996 H 94.3389
Decision by national courts in the field of European Union law — ECLI:NL:RBAMS:1996:2
Date: 1996-03-13
Subject matter: Brussels Convention of 27 September 1968
Origin: Netherlands

81996NL0313(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The plaintiff, a Dutch company, claims damages from the defendant, an Italian company, for failing to deliver certain materials. The plaintiff referred to a jurisdiction clause in its general terms and conditions in favour of the Rechtbank of Amsterdam (NL). The defendant contested this jurisdiction. It first referred to Article 21 Brussels Convention on lis pendens and stated that, prior to these proceedings, proceedings against the plaintiff involving the same cause of action between the same parties were brought in Verona (IT). The plaintiff argued that according to Dutch law the case was formally pending in Amsterdam on 20 October 1994, and that according to Italian law the procedure in Verona was formally pending on 22 November 1994. Second, it invoked its own general terms and conditions, which include a jurisdiction clause.
The Rechtbank considers that the case was formally pending first at the Rechtbank of Amsterdam within the meaning of Article 21 Brussels Convention. Further, Article 22 Brussels Convention cannot be applied as the claims concern the same cause of action. With regard to the jurisdiction clauses, the Rechtbank observes that both parties simultaneously refer to the applicability of their own general terms and conditions, both of which include a jurisdiction clause. The Rechtbank states that the jurisdiction clause which was used first is decisive. The plaintiff normally sent order forms containing a reference to general terms and condition conditions, which were confirmed by the defendant under reference to its own general terms and conditions. The Rechtbank concludes that the plaintiff’s jurisdiction clause applies and that a subsequent reference to other general terms and conditions cannot be considered by the defendant as an explicit objection to the plaintiff’s terms and conditions.