Competition Litigation

News Update

Court of Appeal denies jurisdiction over Deepwater Horizon mass claim of investors against BP
10 November 2017

On 7 November 2017, the Amsterdam Court of Appeal ruled that Dutch courts have no jurisdiction over the Deepwater Horizon mass claim of the Dutch Investors' Association (VEB) against London-based British Petroleum (BP). The VEB had filed a mass claim on the basis of Article 3:305a of the DCC on behalf of investors who bought, held or sold shares – listed on the London, Frankfurt and New York stock exchanges – in the period from 16 January 2007 to 25 June 2010 through a Dutch investment account or Dutch broker, holding BP liable for the damages suffered by these investors. BP was alleged to have made misleading statements both before and after the Gulf of Mexico oil disaster in 2010. On 28 September 2016, the Amsterdam District Court ruled that it had no jurisdiction as the damage did not occur in the Netherlands (“Erfolgsort”) within the meaning of Article 7(2) of the Brussels I regulation. This decision has now been upheld on appeal.

The defending party, BP, has its registered office in London, therefore Article 4(1) of the recast Brussels I regulation on jurisdiction (No. 1215/2012, the "Regulation") provides no basis for jurisdiction of the Dutch courts over this claim against BP. The VEB had argued, referring to ECJ Kolossa, that the Dutch courts should however assume jurisdiction because the strictly financial damage had occurred on investment accounts held at Dutch financial institutions and as a consequence the Netherlands should have been considered to be the place where the damage had occurred ("Erfolgsort"), within the meaning of Article 7(2) of the Regulation (referring to ECJ Kolossa).

The Amsterdam Court of Appeal ruled, referring to ECJ Universal Music, that the sole fact that the damage had occurred on investment accounts located in the Netherlands did not create jurisdiction. Only if, in addition to this fact, the VEB could point to special circumstances justifying bringing this claim to a Dutch court, a Dutch court could assume jurisdiction. Neither the fact that BP had offered it shares to investors worldwide, including Dutch investors, nor the fact that the VEB promotes the interests of a large number of investors, many of whom are resident in the Netherlands, are such special circumstances which could lead to a conclusion that a close connection exists between the claim and the Netherlands. The fact that mass claims procedures as provided for in Article 3:305a of the DCC are not available in other jurisdictions in Europe is also not a special circumstance from which a close connection between the claim and the Netherlands can be derived.

The Amsterdam Court of Appeal's decision confirms that the jurisdiction of the Dutch court, even for mass claims on the basis of Article 3:305a of the DCC, is not unlimited and should, as with any other civil claim, be assessed in accordance with the Brussels I regulation.

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Albert Knigge

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