#5015 - Van Uden - Conflict of Laws BCL

Van Uden (1998)

Facts

Those questions were raised in the context of a dispute between Van Uden Maritime BV ('Van Uden'), established at Rotterdam, the Netherlands, and Kommanditgesellschaft in Firma Deco-Line and Another ('Deco-Line'), of Hamburg, Germany, concerning an application for interim relief (in kort geding proceedings) relating to the payment of debts arising under a contract containing an arbitration clause.

In March 1993 Van Uden and Deco-Line concluded a 'slot/space charter agreement', under which Van Uden undertook to make available to Deco-Line cargo space on board vessels operated by Van Uden, either on its own account or in association with other shipping lines, on a liner service between northern or western parts of Europe and west Africa. In return, Deco-Line was to pay charter hire in accordance with the rates agreed between the parties.

Van Uden instituted arbitration proceedings in the Netherlands pursuant to the agreement, on the ground that Deco-Line had failed to pay certain invoices submitted to it by Van Uden.

Application for interim relied by Van Uden: Van Uden also applied to the President of the Rechtbank (District Court), Rotterdam, for interim relief on the grounds that Deco-Line was not displaying the necessary diligence in the appointment of arbitrators and that non-payment of its invoices was disturbing its cash flow.

In those proceedings, Deco-Line objected, first, that the Netherlands court had no jurisdiction to entertain the claims. Being established in Germany, it could be sued only before the German courts.

The President of the Rechtbank dismissed that objection on the ground that an order sought as interim relief must be regarded as a provisional measure within the meaning of Article 24 of the Convention.

Holding

Application of Art. 31 – Provisional measures

In addition, Article 24, in Section 9 of the Convention, adds a rule of jurisdiction falling outside the system set out in Articles 2 and 5 to 18, whereby a court may order provisional or protective measures even if it does not have jurisdiction as to the substance of the case. Under that provision, the measures available are those provided for by the law of the State of the court to which application is made.

Where the parties have validly excluded the jurisdiction of the courts in a dispute arising under a contract and have referred that dispute to arbitration, there are no courts of any State that have jurisdiction as to the substance of the case for the purposes of the Convention…. In such a case, it is only under Article 24 that a court may be empowered under the Convention to order provisional or protective measures.

Subject matter of the proceedings test - Marc Rich

It must first be borne in mind here that Article 24 of the Convention applies even if a court of another Contracting State has jurisdiction as to the substance of the case, provided that the subject-matter of the dispute falls within the scope ratione materiae of the Convention, which covers civil and commercial matters.

However, Article 24 cannot be relied on to bring within the scope of the Convention provisional or protective measures relating to matters which are excluded from it (Case 143/78 De Cavel v De Cavel [1979] ECR 1055, paragraph 9).

Under Article 1, second paragraph, point 4, of the Convention, arbitration is excluded from its scope. By that provision, the Contracting Parties intended to exclude arbitration in its entirety, including proceedings brought before national courts (Case C-190/89 Rich v Società Italiana Impianti [1991] ECR I-3855, paragraph 18)…. Also excluded from the scope of the Convention are proceedings ancillary to arbitration...