Jurisdiction Clause In General Conditions Ineffective Despite Reference On Invoices In An On-Going Business Relation

The Dutch Supreme court has rendered two judgements on 30 March 2012 in which it decided that a jurisdiction clause in general conditions (the so called FENEX conditions, the conditions used by practically all forwarders in the Netherlands) was ineffective despite the fact that there had been an on-going business relation between the forwarder and its customer of years, and that the invoices in all instances contained a reference to these general conditions (LJN BV2355, HR 11/02227 and LJN BV2356, HR 10/05443.

The FENEX conditions state that damages shall be settled at the place of business of the forwarder. The forwarder and its underwriters initiated proceedings before the court of that place, i.e. the court of Roermond in the Netherlands. The German customer disputed the jurisdiction of that court. The court declined jurisdiction. In appeal however the Court of Appeal of Den Bosch overturned the first instance judgement and accepted jurisdiction. The appeal court