On 28 September 2016, the Amsterdam District Court granted a motion to dismiss for lack of international jurisdiction filed by BP in a securities class action initiated by VEB. VEB had requested a declaratory judgment on the basis of Article 3:305a Dutch Civil Code regarding BP’s liability towards investors who bought, sold, or held BP Ordinary Shares in the period running up to and just after the 2010 explosion on the Deepwater Horizon oil platform.
The Court’s decision shows that whilst (securities) class actions are still on the rise in the Netherlands, there must be a sufficient connection between the alleged damage and the Dutch jurisdiction. The fact that investors may have held securities in the Netherlands is insufficient for jurisdiction of the Dutch courts in the absence of other connecting factors. The Court held that VEB failed to assert relevant other connecting factors. This position is reinforced by the observation that VEB cannot claim damages on behalf of the relevant group of investors – but only a declaratory judgment regarding liability – in collective actions based on Article 3:305a DCC.
In reaching its judgment, the Court relied heavily on a recent decision rendered by the European Court of Justice in Universal Music International Holding B.V. v Michael Tétrault Schilling and others (Case C-12/15 of 16 June 2016, click here for a Stibbe blog on this decision), in which the ECJ held that in tort cases, failing any other connecting factors, jurisdiction cannot be attributed to the courts of a Member State, when the damage consists exclusively of financial damage which materialises directly in the applicant’s bank account held in that Member State and is the direct result of an unlawful act committed in another Member State.
The Stibbe team consisted of Fons Leijten, Jeroen Kortmann, and Olivier Schotel. In this matter, Stibbe worked alongside Sullivan & Cromwell LLP.