Netherlands commercial court rules on jurisdiction in cross-border loan dispute, arbitration clauses prevail

The dispute centred on a loan agreement between Warando S.A. (Luxembourg) (“Warando”) and Benelux Wonen B.V. (Netherlands) (“Benelux Wonen”), with House Delta BVBA (Belgium) also involved. Warando sought payment of variable interest under a EUR 3 million loan. The agreement included an arbitration clause specifying the International Chamber of Commerce in Luxembourg as the forum for resolving disputes. Warando argued that subsequent negotiations and draft settlement agreements with Benelux Wonen constituted a waiver of the arbitration clause in favour of the NCC in Amsterdam.

Key legal issues:

• The original loan agreement contained a clear arbitration clause. Under both the New York Convention and Dutch law, courts must refer parties to arbitration unless the agreement is invalid or inoperative;
• Warando claimed that email correspondence and draft settlement agreements showed consensus to waive arbitration and submit disputes to the NCC. However, the NCC emphasised that deviation from an arbitration clause requires clear, written, and mutual agreement;
• NCC rules and EU regulations require an express, written agreement for jurisdiction. The NCC found that the parties never signed the draft settlement agreement and that the correspondence did not establish the necessary consensus.

The NCC ruled that Warando failed to demonstrate a valid waiver of the arbitration clause or a binding forum selection for the NCC. As a result, the court declined jurisdiction, reinforcing the primacy of the original arbitration agreement.

This decision is relevant for GGI members as it highlights the critical need for precision and formality when modifying dispute resolution mechanisms in international agreements. Any intended changes to arbitration or forum clauses must be clearly documented and signed by all parties involved. The ruling makes clear that ongoing negotiations or the exchange of unsigned draft agreements are not sufficient to override existing arbitration clauses. For clients engaged in cross-border transactions, it is prudent to regularly review dispute resolution provisions and, where necessary, ensure any amendments are formally executed to prevent costly and time-consuming jurisdictional disputes.

Ultimately this case serves as a reminder that clarity and legal certainty are paramount in international contracting. Arbitration clauses will be strictly enforced unless there is an explicit, written, and mutual waiver by all parties. Legal counsel advising on cross-border matters should take care to ensure that any intended changes to dispute resolution forums are properly formalised and executed. This approach helps to safeguard clients from unintended litigation hurdles and reinforces the importance of robust contract management in the global business environment.

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Michiel Teekens is a Partner with TeekensKarstens advocaten notarissen (TK). He is an international corporate and commercial litigator and Chair of the International Law team of experts in TK. He also serves as European Regional Chair of the GGI Litigation & Dispute Resolution (LDR) Practice Group.