What Constitutes Express Agreement for Valid Jurisdiction?

In its summary judgement of 14 April 2020 (ECLI:NL:RBAMS:2020:2277), the NCC provided helpful insights as to what can constitute an express agreement to ensure NCC jurisdiction.

The NCC ruled that article 30r Dutch Code of Civil Procedure does not impose any requirement to the effect that an NCC clause is valid only if included in a document signed by the parties. The requirement of an “express” agreement is met where the parties’ agreement in favour of NCC is clearly stated, was made with knowledge of the clause, and was not hidden in one party’s general terms and conditions. In the Court’s preliminary analysis, a reasonable person in the same circumstances as the motion defendant would have understood the documents to mean that disputes in connection with a letter of intent and a transaction agreement should be brought before the NCC. The NCC stipulates that the NCC clause is separate from the main agreement in which it is included, reflecting that parties can agree to a NCC clause before the main agreement is in agreed form.

In this case the motion claimant made numerous statements which, on a preliminary basis, warrant the conclusion that there was agreement on the NCC clause. Although in this case there was a formal requirement to enter into the transaction (“execute” and “deliver”) including an entire agreement clause, these points only had little weight in the analysis by the NCC. The judgment shows that not only is the wording of the NCC clause relevant, but also the question of at what stage it becomes binding.

Published: Litigation & Dispute Resolution Newsletter, No. 14, Spring 2021 l Photo: Sjaak - stock.adobe.com