Martijn van de Hel successfully assisted a landlord of retail premises in a dispute with insolvent department store Hudson’s Bay regarding alleged cartel conduct. Hudson’s Bay claimed that the landlords from which it leased retail premises conspired about guarantees that Hudson’s Bay had issued for its rental obligations. If so, the leases must be terminated, according to Hudson’s Bay. The landlords of the retail properties denied that prohibited cartel conduct had ever taken place. They claimed that the lease terms were in fact dictated by Hudson’s Bay’s Canadian parent company itself. The landlords regard this request for a preliminary hearing of witnesses as a diversion tactic and as an abusive attempt by Hudson’s Bay’s Canadian parent company to evade its guarantee obligations. For more background information see Het Parool and Het Financieele Dagblad.
Hudson’s Bay requested the Amsterdam District Court to summon no fewer than 43 parties to testify about its allegations. The court rejected that request. In the court’s opinion, Hudson’s Bay’s request had been insufficiently substantiated and was partly incorrectly. The court furthermore found that the request “is of an ill-considered nature, lacks proper substantiation on crucial points and is incoherent.” Hudson’s Bay had referred, for instance, to abuse of a dominant position as a possible basis for its claim, an allegation that is incompatible with its other allegation of cartel conduct. Hudson’s Bay had not provided any substantiation whatsoever of the latter accusation.
In assessing the request, the Amsterdam District Court also took into account Hudson's Bay's position during the negotiations. Hudson’s Bay had a relatively large amount of information at its disposal as it was the only prospective tenant. Moreover, Hudson’s Bay expressed its suspicion that the landlords had acted in breach of competition law only after it had been declared bankrupt, not during the negotiations. The Amsterdam District Court found that “in these circumstances, each of the grounds developed in case law for the rejection of a request for a preliminary hearing of witnesses is present” and denied the request.
