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In X v Amstelveen Equity Trust BV et al, ECLI:NL:RBAMS:2025:2975 (anonymised presumable because of the family issues in the litigation; not a convincing reason to anonymise imo) claimant seeks damages in excess of 1.3 billion $ from two of his uncles and a series of corporations associated with them. The nephew (a similar claim by his ssiter was settled earlier, In Turkey) claims that the uncles mismanaged the shares which were held by his father in the two defendant Turkish companies, a shareholding in which he claims he has succeeded his father.
The claim alleges that the two Turkish corporations transferred the shares to their own ownership and subsequently transferred them to the two Dutch corporations who are also defendants, without paying the proper value to the nephew. Claimant has also seized a Turkish court, with a claim to value the shares, and to annul the decisions of the Turkish corporations to transfer the shares first into their own names and subsequently to the Dutch corporations. The transfer of the shares is based on relevant article in the Turkish Corporations Act which reads
“if the shares have been acquired by inheritance, division of inheritance, provisions of the property regime between spouses or by compulsory execution, the company may refuse to give approval to the person acquiring the shares only if he proposes to take over the shares at their real value”
Current judgment deals only with the defendant’s request, which it grants, to stay the Dutch proceedings, pending the decision by the Turkish court. [3.14] the shares meanwhile have been sequestered by earlier decision of the Dutch courts.
[5.2] and [5.3] the Court holds that Article 26 Brussels Ia (voluntary appearance aka prorogation aka submission) applies equally to non-EU domiciled defendants, with reference to CJEU C-412/98 Group Josi [44]:
Admittedly, under Article 18 of the Convention, the voluntary appearance of the defendant establishes the jurisdiction of a court of a Contracting State before which the plaintiff has brought proceedings, without the place of the defendant’s domicile being relevant.
As I explain in my critical review of X v Trustees of Max Stern, I do not think that section of Group Josi relates to the non-EU element of the defendant’s domicile, rather its domicile full stop (within the EU). Neither the German Supreme Court nor the Amsterdam court here are right, in my view, and the issue is most certainly not acte claire, particularly given the language of Article 6 Brussels Ia.
[5.4] ff then discusses the call of both the Dutch and the Turkish defendants upon either Article 33 lis pendens or Article 34 related cases, or their residual Dutch equivalent.
The court [5.6] swiftly decides that the Turkish defendants’ call upon Articles 33-34 does not go anywhere seeing as Article 6 (which it, imo wrongly, held grounds its jurisdiction) is not listed as one of the jurisdictional anchors which may be corrected by Articles 33-34. Yet [5.41] the court holds that the (Dutch) ‘sound administration of justice’ justifies a stay ‘on the same considerations’ which led to its granting a stay on A33-34 grounds viz the Dutch defendants. This is cakeism. Either you hold that Brussels Ia applies and then you apply all of Brussels Ia, including the consequences of the A33-34 limits. Here: if an A33-34 stay is not possible, then neither is a case-management stay or a ‘sound administration of justice’ stay if these merely recycle the, by definition inapplicable, A33-34 analysis (see also my earlier posts echoing ‘circumventing Owusu via the back door’, ia viz de Jong and Municipio): for that is just a ‘me too’ A33-34 stay in circumstances where these Articles clearly do not apply.
Viz the Dutch defendants, the court first of all holds that A33 does not apply for the lis pendens conditions are not met: [5.12] while the Turkish proceedings only concern the Turkish corporations, the Dutch concern both the Dutch and the Turkish ones, and a number of directors; both materially and from the point of view of procedures, the defendants in the Dutch proceedings have a very different position both among themselves and, for the Turkish defendants, viz their position in the Turkish proceedings. [5.13] neither do the proceedings concern the same matters of law, seeing as the Dutch one relates to tort and unjust enrichment, while the Turkish one concerns corporate law as well as economic law.
However the call upon A34 forum connexitatis /related action is successful. I discuss all conditions here and will not repeat them all at length in this post.
[5.19] the court matter of factly posits that for the condition of ‘relatedness’, A30 Brussels Ia’s approach (A30 applies in case of lis pendens between EU Courts) equally applies to A34. It holds that [5.25] the ownership question over the shares is core to, at the least very relevant in, both the Turkish and the Dutch procedures, as is [5.26] the valuation of the shares. [5.27] diverging answers to these questions by the Turkish cq Dutch courts would lead to a risk of irreconcilable judgments. [5.28] that the pending cases in Turkey concern more than just one procedure is held to be irrelevant for the purposes of A34.
Further, applying an Anerkennungsprognose, any future Turkish judgment is likely to be recognisable in The Netherlands following the criteria of the Dutch Supreme Court in Gazprom.
As for the ‘proper administration of justice’, [5.35] the court holds that the Turkish proceedings are likely to be completed within a reasonable period (reference here is made to the Dutch courts likely not deciding such a complex case in a shorter timeframe); the Turkish proceedings already having been underway for quite a while (and for some of them, under an exclusive ground of jurisdiction); and the close link with Turkey even in the Dutch proceedings. [5.40] the court reminds the parties that if circumstances change the balance of competing interests (one would imagine, excessive delay in the Turkish procedures, perceived bias, etc), an application to lift the stay may be made.
Both the A6 decision and the effective application of A33-34 to the Turkish defendants despite these Articles not applying to relevant claim, are a weak link in my view in current judgment. The A33-34 analysis is a touch on the concise size with a view to proper administration of justice.
At any rate, a judgment of note, seeing the extensive engagement with A33-34.
Geert.
European Private International Law, 2.572 ff.