In October 2016 our firm was involved in summary proceedings in which the return and reduction of a bank guarantee was claimed. The facts of these proceedings were as follows. In 2007 Belgian buyers ordered an inland barge with a Belgian shipyard. When the building of the hull was ready it was noted by the buyers that the hull showed several deficiencies. The buyers therefore refused to take delivery of the hull. This eventually resulted in proceedings between the buyers and the shipyard in Belgium.

Eventually the Supreme Court in Belgium held that the shipyard was liable towards the buyers. Subsequently, the case was referred back to the Court of Appeal to determine the extent of the loss.

During the Belgian proceedings our firm was instructed by the buyers to arrest a ship that was owned by the shipyard. The arrest was made in 2011. After the arrest the shipyard instructed a lawyer. The lawyer then offered a bank guarantee on the Rotterdam Guarantee Form 2008 in order to get the arrest lifted. In that respect the lawyer of the shipyard indicated that the guarantee was provided under the reservation that it could be claimed back pursuant to Article 705 Dutch Civil Code of Proceedings (DCCP). The buyers did not agree with this reservation. Nevertheless a guarantee was subsequently provided.

In the Belgian proceedings at the end of 2015 the court surveyor sent his final report to the Court of Appeal. According to the shipyard, it followed from this report that the buyers had not suffered a loss as a result of the termination of the contract. Therefore, the shipyard claimed the return of the guarantee or the reduction of the guarantee. This was refused by the buyers.

Subsequently, the shipyard commenced summary proceedings before the Court of Rotterdam in which the return or reduction of the provided bank guarantee was claimed. In these proceedings our firm disputed on behalf of the buyers that the summary judge of the Court of Rotterdam was competent to hear the claim of the shipyard, because the requirements of Article 35 EU-Directive 1215/2012 had not been fulfilled.

The summary judge first of all held that the shipyard could not rely on the jurisdiction clause Court of Rotterdam as provided in the Rotterdam Guarantee Form 2008, because the shipyard was not a party to the bank guarantee. According to the summary judge, the jurisdiction clause as provided in the bank guarantee was agreed between the two parties to the guarantee, being the bank and the buyers.

The summary judge further had to decide whether the Court of Rotterdam would be competent pursuant to Article 35 EU-Directive 1215/2012. In that respect is required that (a) the claim of the shipyard relates to a provisional, or protective measure and that (b) there is a real connection between the subject of the requested measures and the on the territorial requirements based competence of the judge. In that respect the summary judge held first of all that the returning or reduction of the bank guarantee is not a provisional measure. According to the summary judge, such a measure has a final character. This is already a reason for the Court not being competent, according to the summary judge. Further, the summary judge held that there was no real connection with the Netherlands. This because both parties are based in Belgium and the bank guarantee has been provided by a Belgian bank. Through the departure of the ship from Rotterdam there was no longer a connection with the Netherlands, according to the summary judge.

Under Dutch law in summary proceedings pursuant to Article 705 DCCP the lifting of a ship arrest could be claimed. According to the shipyard’s lawyer, such proceedings are also open for a claim relating to the return or reduction of a bank guarantee, in case the ship arrest was lifted after a bank guarantee had been provided. In that respect the summary judge considered that the fact that a previous arrest procedure had taken place, does not mean that in the present new summary proceedings not again the competence of the Dutch Court has to be determined, so that the question whether the Court is competent to hear the shipyard’s claim has to be answered pursuant to Article 35 EU-Directive 1215/2012. The argument of the shipyard’s lawyer was therefore ignored by the summary judge.

Should you in the future be confronted with a similar case and nevertheless would like to keep open the possibility to claim the return or reduction of the bank guarantee before the Court of Rotterdam, then we advise you to expressly agree with the opponent that the summary judge of the Court of Rotterdam is competent to hear such a claim.