Martijn van de Hel has successfully represented a landlord of retail premises in a dispute with department store Hudson’s Bay regarding an alleged cartel.
Hudson’s Bay claimed that the landlords from whom it leased retail premises had colluded over guarantees that Hudson’s Bay had issued for its rental obligations. Hudson’s Bay therefore requested the Amsterdam Court to summon no fewer than 43 parties to testify about its allegations. The Amsterdam Court dismissed the application last year. More background information can be found in our earlier report on this case and in Het Parool and Het Financieele Dagblad.
Hudson’s Bay appealed the judgment issued by the Amsterdam Court, arguing, among other things, that the Amsterdam Court had wrongly applied the IATA standard in assessing an application for a preliminary examination of witnesses. As a result, it argued, the incorrect legal framework was applied and Hudson’s Bay’s application was wrongly dismissed.
The Amsterdam Court of Appeal did not subscribe to that opinion. It found that the Amsterdam Court had not applied the IATA standard, but had assessed whether Hudson’s Bay’s application met the requirements of Article 187(3) of the Dutch Code of Civil Procedure.
Article 187(3) of the Dutch Code of Civil Procedure provides that the application must set out the facts to be proven in such a manner that it is sufficiently clear to the court deciding on the application, to the court before which the hearing will be conducted, and to the other party or parties, to what facts the hearing will pertain. The court was therefore free to take heed of the IATA standard that is applied in proceedings relating to an (alleged) infringement of competition law.
The Court of Appeal furthermore found that Hudson’s Bay’s application had not been dismissed by the court on the grounds that it did not meet the legal requirements, but because all the grounds for dismissal developed in case law applied. The same applied on appeal. The Court of Appeal ruled that “granting the application in the present case would be inefficient, contrary to procedural efficiency and socially irresponsible”.
