Amsterdam District Court rules in Schiphol A-Pier termination case
On 30 July 2025, the Amsterdam District Court ruled in the dispute between Schiphol and the BN-TAV consortium regarding the construction of the A-Pier.
The judgment contains important lessons for the construction law practice concerning design responsibility, the consequences of defective designs, the burden of proof, and the criteria for the termination of construction contracts in complex (construction)projects.
On 30 July 2025, the Amsterdam District Court ruled in the dispute between Schiphol and the consortium of contractors – BN-TAV – concerning the construction of the A-Pier (ECLI:NL:RBAMS:2025:5463).
Schiphol terminated the construction contract with BN-TAV in November 2021 due to alleged shortcomings. BN-TAV then initiated legal proceedings, primarily claiming that the termination was unlawful.
Design responsibility
In the construction industry, clients can generally choose between different types of contracts, including Design & Build contracts, in which the contractor is responsible not only for executing the work, but also for designing it. A more traditional type of contract is a 'Build Only' contract, whereby the contractor is responsible for the execution of the work and the design remains with the client.
Schiphol initially launched the A-Pier project as a Design & Build contract but changed this during the tendering process. Schiphol retained design responsibility; BN-TAV was only required to produce shop drawings based on the design provided by Schiphol.
The court confirmed in its judgment that any shortcomings in the design provided by Schiphol were, in principle, at the expense and risk of the client (Schiphol) rather than the contractor (BN-TAV).
Consequences of an insufficiently developed design
The court emphasised that the incomplete design had caused structural problems during execution. The parties attempted to remedy this with additional agreements, but this approach did not provide sufficient relief.
This case illustrates that a lack of properly detailed designs at the start of a project leads to delays, cost increases, and ongoing disputes about responsibilities.
Burden of proof
Since Schiphol had terminated the construction contract and invoked its legal validity in the proceedings, the burden of proof for the termination's legal validity lay with Schiphol. The fact that BN-TAV primarily sought a declaration of law that Schiphol had breached the contract by terminating it, does not alter this.
The court follows the Dutch Supreme Court's established case law: requesting a negative declaratory decision does not mean that the burden of proof shifts to the party seeking that declaration (Dutch Supreme Court, 12 April 2019, ECLI:NL:HR:2019:59, (X./Dexia)). It is the content of the arguments that is decisive, not the wording of the claim.
Termination is not just possible
The court emphasises that termination is only possible in the case of a large and complex project if there are shortcomings of sufficient weight (Dutch Supreme Court 28 September 2018, ECLI:NL:HR:2018:1810 (Eigen Haard)).
The court found that a significant proportion of the shortcomings mentioned by Schiphol in the Notices to Correct were either unfounded or had already been addressed by BN-TAV or could not reasonably be expected to be addressed by BN-TAV. Insofar as there were still shortcomings, the court did not consider the shortcomings to be significant enough to justify termination of the agreement.
The court considered that Schiphol began the project with a flawed design and continued despite BN-TAV's warnings. According to the court it was clear for Schiphol that the project could not be successfully completed without modifying the design. BN-TAV had little choice but to follow Schiphol's instructions.
The court also considered that the termination had far-reaching consequences, also for BN-TAV's numerous subcontractors.
Conclusion
The judgment confirms that termination of a construction contract for large-scale projects cannot be taken lightly. Only serious shortcomings of sufficient weight justify termination, also considering the far-reaching consequences for the client, contractor, and other parties involved.
Ingmar de Groot and Daniël Muis successfully represented BN-TAV in this dispute. If you have any questions regarding the contractual division of design responsibility, contractual risks, or the termination of contracts in complex projects, please do not hesitate to contact us. We would be happy to advise.
