In an international dispute, the first question is: which court has jurisdiction? The answer can have major consequences for costs, speed, language, and outcome. In our practice, we see that many Dutch entrepreneurs do not master the rules of jurisdiction. Without a choice of forum, complex international private law applies. Even with a choice of forum, interpretation sometimes remains unclear. Those who know the basics can steer strategically.
What is the legal problem?
Jurisdiction of a court follows from a choice of forum, the domicile of the defendant, the place of performance, or special rules of jurisdiction. Internationally, this varies by treaty area. Parallel proceedings, anti-suit injunctions, and lis pendens rules make jurisdiction a specialty. An incorrect assessment leads to proceedings before the courts of first instance.
What does the law say?
Brussels I-bis (Regulation (EU) 1215/2012) is leading within the EU: domicile of the defendant (Article 4), place of performance (Article 7 paragraph 1), choice of forum (Article 25). Protective rules apply to consumers and employees under Articles 17-23. Outside the EU, national private international law applies (Netherlands: Articles 1-14 of the Code of Civil Procedure). The Hague Convention on Choice of Forum 2005 strengthens international choice of forum. The Hague Judgment Convention 2019 increases recognition.
Special rules of jurisdiction apply to torts under Article 7(2), intellectual property under Article 24, real estate, and bankruptcy.
What risks do companies face?
Procedures before an unexpected court lead to extra costs and a strategic disadvantage. Parallel proceedings multiply legal fees. Unintended consumer protection applies in B2C classification. Anti-suit injunctions in common law countries can be costly. Unfamiliarity with mandatory law in the destination country gives the opposing party an advantage.
Practical example from our practice
We advised a Dutch supplier who wanted to sue an Italian customer in Amsterdam because the contract specified a Dutch court. The Italian party initiated preventive proceedings in Italy (torpedo strategy). Under Article 31(2) of Brussels I-bis, the Dutch court gave precedence to the choice of forum, regardless of order. Under the old Brussels I rules, the Italian court would have had jurisdiction first. Brussels I-bis effectively combats the torpedo.
What can you do?
Incorporate an exclusive choice of forum in every international contract under Article 25 of Brussels I-bis. Assess jurisdiction early in dispute resolution. For B2C: respect consumer law under Articles 17-19. Document all elements determining jurisdiction (establishment, performance, damages). Combine with choice of law and arbitration where useful. See also our article on Forum Selection Clauses in Practice.