District Court of The Hague rules on preliminary defences in paraffin wax damage claims case

On 1 May 2013, the District Court of The Hague ruled in an interim decision on various preliminary defences in an antitrust 'follow-on' litigation case between CDC and Shell, Esso, Sasol and Total. The court rejected the defences regarding jurisdiction and the request to stay the proceedings, at least at this early stage.

On 1 October 2008, Shell, Esso, Sasol and Total were fined by the European Commission for an alleged infringement on the paraffin wax market. CDC is a professional claimant vehicle that has collected claims of companies that were allegedly harmed by the alleged infringement. CDC not only instituted claims against the direct participants in the alleged infringement, but also against their parent companies that were also addressees of the Commission's decision, among them Shell Petroleum NV and Total SA. In its judgment of 1 May 2013, the District Court ruled, inter alia, on preliminary defences relating to jurisdiction and on whether to stay the proceedings.

Regarding jurisdiction, the court ruled that the Dutch courts have jurisdiction to assess the claims against the 'anchor-defendant' Shell Petroleum NV given that it is established in the Netherlands. The court subsequently ruled that it also has jurisdiction with regard to the other defendants, as there was a sufficiently close relationship between the claims to jointly assess them against all the defendants. The court rejected Total's argument that a choice-of-forum clause would apply, as the choice-of-forum clause was included in a contract with its subsidiary and the mere fact that the parent company is part of the same group of companies as the subsidiary is insufficient to accept that the choice-of-forum clause also applies to the parent company.

Furthermore, the court found that at this stage, the proceedings do not have to be stayed although there are pending appeal proceedings before the General Court against the decision on which the damage claims were based. The court considers that it did not yet receive the full contents of the decision and the defendants did not yet submit a statement of defence. Therefore, there would not be any risk that the court will take any contradicting judgement yet. In addition, the court considers it likely that decisions will have to be made about issues unrelated to the validity of the Commission decision, for which there is no risk of contradictory decisions. Moreover, Shell did not appeal the Commission decision, and thus the assessment of these issues will have to take place irrespective of the outcome of the appeals.

The judgment confirms that Dutch courts tend to assume jurisdiction rather easily in international antitrust follow-on litigation cases. Furthermore, the decision confirms that courts assess on a case-by-case basis whether and when to stay proceedings. Earlier, the District Court of Rotterdam decided, on the basis of different grounds, not to stay proceedings in the Bitumen case, while the District Court of Amsterdam did stay proceedings in a case relating to Air cargo.