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In X v Amstelveen Fairness Belief BV et al, ECLI:NL:RBAMS:2025:2975 (anonymised presumable due to the household points within the litigation; not a convincing cause to anonymise imo) claimant seeks damages in extra of 1.3 billion $ from two of his uncles and a sequence of companies related to them. The nephew (an identical declare by his ssiter was settled earlier, In Turkey) claims that the uncles mismanaged the shares which had been held by his father within the two defendant Turkish corporations, a shareholding wherein he claims he has succeeded his father.
The declare alleges that the 2 Turkish companies transferred the shares to their very own possession and subsequently transferred them to the 2 Dutch companies who’re additionally defendants, with out paying the right worth to the nephew. Claimant has additionally seized a Turkish court docket, with a declare to worth the shares, and to annul the choices of the Turkish companies to switch the shares first into their very own names and subsequently to the Dutch companies. The switch of the shares is predicated on related article within the Turkish Companies Act which reads
“if the shares have been acquired by inheritance, division of inheritance, provisions of the property regime between spouses or by obligatory execution, the corporate might refuse to provide approval to the particular person buying the shares provided that he proposes to take over the shares at their actual worth”
Present judgment offers solely with the defendant’s request, which it grants, to remain the Dutch proceedings, pending the choice by the Turkish court docket. [3.14] the shares in the meantime have been sequestered by earlier determination of the Dutch courts.
[5.2] and [5.3] the Courtroom holds that Article 26 Brussels Ia (voluntary look aka prorogation aka submission) applies equally to non-EU domiciled defendants, with regards to CJEU C-412/98 Group Josi [44]:
Admittedly, beneath Article 18 of the Conference, the voluntary look of the defendant establishes the jurisdiction of a court docket of a Contracting State earlier than which the plaintiff has introduced proceedings, with out the place of the defendant’s domicile being related.
As I clarify in my crucial overview of X v Trustees of Max Stern, I don’t suppose that part of Group Josi pertains to the non-EU aspect of the defendant’s domicile, slightly its domicile full cease (inside the EU). Neither the German Supreme Courtroom nor the Amsterdam court docket listed here are proper, in my opinion, and the problem is most actually not acte claire, significantly given the language of Article 6 Brussels Ia.
[5.4] ff then discusses the decision of each the Dutch and the Turkish defendants upon both Article 33 lis pendens or Article 34 associated instances, or their residual Dutch equal.
The court docket [5.6] swiftly decides that the Turkish defendants’ name upon Articles 33-34 doesn’t go anyplace seeing as Article 6 (which it, imo wrongly, held grounds its jurisdiction) will not be listed as one of many jurisdictional anchors which can be corrected by Articles 33-34. But [5.41] the court docket holds that the (Dutch) ‘sound administration of justice’ justifies a keep ‘on the identical concerns’ which led to its granting a keep on A33-34 grounds viz the Dutch defendants. That is cakeism. Both you maintain that Brussels Ia applies and then you definitely apply all of Brussels Ia, together with the implications of the A33-34 limits. Right here: if an A33-34 keep will not be potential, then neither is a case-management keep or a ‘sound administration of justice’ keep if these merely recycle the, by definition inapplicable, A33-34 evaluation (see additionally my earlier posts echoing ‘circumventing Owusu through the again door’, ia viz de Jong and Municipio): for that’s only a ‘me too’ A33-34 keep in circumstances the place these Articles clearly don’t apply.
Viz the Dutch defendants, the court docket to begin with holds that A33 doesn’t apply for the lis pendens situations usually are not met: [5.12] whereas the Turkish proceedings solely concern the Turkish companies, the Dutch concern each the Dutch and the Turkish ones, and quite a few administrators; each materially and from the viewpoint of procedures, the defendants within the Dutch proceedings have a really completely different place each amongst themselves and, for the Turkish defendants, viz their place within the Turkish proceedings. [5.13] neither do the proceedings concern the identical issues of regulation, seeing because the Dutch one pertains to tort and unjust enrichment, whereas the Turkish one issues company regulation in addition to financial regulation.
Nevertheless the decision upon A34 discussion board connexitatis /associated motion is profitable. I talk about all situations right here and won’t repeat all of them at size on this submit.
[5.19] the court docket matter of factly posits that for the situation of ‘relatedness’, A30 Brussels Ia’s strategy (A30 applies in case of lis pendens between EU Courts) equally applies to A34. It holds that [5.25] the possession query over the shares is core to, as a minimum very related in, each the Turkish and the Dutch procedures, as is [5.26] the valuation of the shares. [5.27] diverging solutions to those questions by the Turkish cq Dutch courts would result in a threat of irreconcilable judgments. [5.28] that the pending instances in Turkey concern greater than only one process is held to be irrelevant for the needs of A34.
Additional, making use of an Anerkennungsprognose, any future Turkish judgment is prone to be recognisable in The Netherlands following the standards of the Dutch Supreme Courtroom in Gazprom.
As for the ‘correct administration of justice’, [5.35] the court docket holds that the Turkish proceedings are prone to be accomplished inside an inexpensive interval (reference right here is made to the Dutch courts possible not deciding such a posh case in a shorter timeframe); the Turkish proceedings already having been underway for fairly some time (and for a few of them, beneath an unique floor of jurisdiction); and the shut hyperlink with Turkey even within the Dutch proceedings. [5.40] the court docket reminds the events that if circumstances change the steadiness of competing pursuits (one would think about, extreme delay within the Turkish procedures, perceived bias, and many others), an utility to raise the keep could also be made.
Each the A6 determination and the efficient utility of A33-34 to the Turkish defendants regardless of these Articles not making use of to related declare, are a weak hyperlink in my opinion in present judgment. The A33-34 evaluation is a contact on the concise dimension with a view to correct administration of justice.
At any price, a judgment of be aware, seeing the in depth engagement with A33-34.
Geert.
European Personal Worldwide Regulation, 2.572 ff.
