Contracte comerciale internaționale: alegerea unei firme de avocatură olandeze

For international commercial contracts, choose the Dutch firm that handles the clauses that decide the outcome when things go wrong: governing law under the Rome I Regulation, the Vienna Sales Convention (CISG), jurisdiction or arbitration, and standard terms under Article 6:225(3) of the Dutch Civil Code (BW). The main exception to “any commercial firm will do” is enforcement: a firm that has not taken these clauses to a court or tribunal abroad often drafts them too loosely.

De ce este „strălucitor în dreptul contractelor” întrebarea greșită?

Every commercial firm drafts contracts, but the differences show up at three moments: a dispute about which law governs, a battle of standard terms, and enforcement across a border. Each moment has its own legal source, from Rome I to the New York Convention of 1958, and how a firm handles them tells you more than a list of practice areas.

Care patru clauze decid rezultatul tău?

Ce lege guvernează contractul dumneavoastră?

Within the EU, the law applicable to a commercial contract follows from the Rome I Regulation. Article 3 gives effect to the parties’ choice of law; absent a choice, Article 4 applies default rules based on the characteristic performance: for a sale of goods, the seller’s habitual residence; for services, the service provider’s. Choosing Dutch law is often sensible for a Dutch-facing deal, but it has consequences.

Se aplică CISG contractului dumneavoastră?

This is the point most often missed. The CISG applies automatically to cross-border sales of goods between parties in contracting states (Article 1 CISG), and the Netherlands is one. A bare choice of “Dutch law” therefore brings the CISG with it, because the CISG forms part of Dutch law for those contracts.

If you want the rules of the BW instead, you have to exclude the CISG expressly (Article 6 CISG). Whether exclusion suits you depends on your side of the contract: the CISG is in several respects more generous to buyers on conformity and notice than well-drafted Dutch supplier terms.

Instanță judecătorească sau arbitraj?

A choice of court between EU parties is governed by Article 25 of the Brussels I Recast Regulation, which also makes judgments broadly enforceable across member states. Where the counterparty sits outside the EU, enforcement usually favours arbitration: an award travels under the 1958 New York Convention to more than 170 states. The Netherlands Arbitration Institute (NAI) and the Netherlands Commercial Court, which hears international disputes in English, are both realistic options for a Dutch-seated deal.

Ai cui termeni standard se aplică?

Dutch law has a counter-intuitive rule for foreign parties. Under Article 6:225(3) BW, where an offer and an acceptance each refer to different standard terms, the second reference has no effect unless it expressly rejects the first set. The Netherlands follows a first-shot rule where many systems follow a last-shot rule, so the order of the emails can decide whose terms apply.

Separately, standard terms must be made available before or when the contract is concluded (Articles 6:233 and 6:234 BW); if not, the counterparty can have them annulled. That protection does not extend to large companies, such as those publishing annual accounts or employing 50 or more people (Article 6:235 BW).

Ce adaugă legislația olandeză, lucru pe care avocații străini îl trec adesea cu vederea?

Under Article 6:248 BW, a contract has the effects agreed by the parties and also those arising from reasonableness and fairness (redelijkheid en billijkheid); an agreed rule does not apply where that would be unacceptable by that standard. Dutch courts read a contract in light of what the parties could reasonably expect of each other, the approach of the Haviltex case law (ECLI:NL:HR:1981:AG4158), rather than its literal wording alone. As a result, entire-agreement clauses carry less weight here, and a harsh exclusion clause is more vulnerable to challenge.

How do you choose the right firm?

Test a candidate firm on how it handles the four clauses above. Six criteria help:

• Ei întreabă mai întâi despre aplicarea legii. Where are the counterparty’s assets? The answer shapes the dispute resolution clause.
• Acestea abordează în mod explicit CISG. Including or excluding it under Article 6 CISG is a decision; silence is not.
• Au citit termenii standard ai celeilalte părți. Given Article 6:225(3) BW, the sequence of the exchange is part of the advice.
• Ei litighează sau arbitrează, precum și redactează acte. O firmă care a sesizat cu aceste clauze un tribunal le redactează diferit.
• Ei lucrează în engleză la documentul în sine. Not a translated summary of a Dutch draft.
• Sunt sinceri în legătură cu ceea ce nu fac. Cross-border tax structuring, transfer pricing and customs are separate disciplines.

Ce ar trebui să verificați ca vânzător sau furnizor?

As seller, your main exposure lies in the CISG and in whether your own terms survive the exchange under Article 6:225(3) BW. Check these points:

• Do you exclude the CISG expressly if you want BW rules on conformity and notice?
• Did your terms go out first, and were they actually sent to the buyer?
• Is your limitation of liability defensible under Article 6:248(2) BW?
• Can you enforce a judgment or award where the buyer’s assets are?
• For distribution or agency: have you priced in the agent’s goodwill indemnity under Article 7:442 BW?

Ce ar trebui să verificați ca și cumpărător sau client?

As buyer, you usually benefit from the CISG and from the purposive reading of Article 6:248 BW. Check these points:

• Do the seller’s terms exclude the CISG, and do you accept that?
• Does your acceptance expressly reject the seller’s terms, if you want your own to apply?
• How short is the notice period for defects (Article 39 CISG: within a reasonable time, at most two years)?
• Which law governs if the contract is silent (Article 4 Rome I)?
• Where will you have to sue, and in which language?

Ce putem face pentru dumneavoastră în cazul contractelor comerciale internaționale?

Gama de avocați corporativi draft, negotiate and litigate commercial contracts under Dutch law, in English and Dutch, from Eindhoven și Amsterdam:

• We review the other side’s draft and standard terms within one working day.
• We draft the governing law, CISG and dispute resolution clauses with enforcement as the starting point.
• We draft distribution, agency, supply, SaaS and licensing agreements, including IP ownership across borders.
• We conduct proceedings before Dutch courts, the Netherlands Commercial Court and the NAI.
• We tell you when a matter needs a tax or customs specialist: international tax structuring is not part of our practice.

Rezumat

• The clauses that matter are governing law, the CISG, jurisdiction or arbitration, and standard terms.
• Alegerea legislației olandeze aduce cu sine CISG pentru vânzările transfrontaliere de bunuri, cu excepția cazului în care o excludeți în mod expres.
• The Dutch first-shot rule (Article 6:225(3) BW) means the order of the documents can decide whose terms apply.
• For a non-EU counterparty, an arbitral award under the New York Convention is usually easier to enforce than a Dutch judgment.

Întrebări frecvente