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Petermann v. Frans Maas

2009 May 28

Court: Netherlands Supreme Court

Date: February 2nd, 2001

LJN number: AA9767

Case: Petermann, a German company, asked the Dutch company Frans Maas for a quotation for forwarding acitivities regarding three shipments of VCR’s. Moreover, it wished to be informed about the applicable conditions. Frans Maas sent a letter that contained the requested quotation. The letter head of Frans Maas contained a standard referral to the Dutch Forwarding Conditions, also known as the FENEX-conditions. These  condtions of the Netherlands Association for Forwarding and Logistics are commonly used by freight forwarders in The Netherlands. Where all other correspondence was in German, the referral to the conditions was in Dutch. It read:

"Onze werkzaamheden zijn expeditiewerkzaamheden en derhalve zijn hierop van toepassing de algemene voorwaarden (volgens de laatste versie) der Federatie van Nederlandse Expediteursorganisaties, gedeponeerd ter Griffie der Arrondissementsrechtbank te Amsterdam, Arnhem, Breda en Rotterdam."

The FENEX-conditions contain an arbitration clause. A conflict arose. The authorities levied an anti dumping tax, which was subsequently charged to Petermann by Frans Maas. Petermann refused to pay, after which Frans Maas initiated arbitration proceedings. Arbitrators ruled against Petermann, who subsequently asked the Rotterdam District Court to quash the arbitral award, arguing that it had not agreed to refer disputes to arbitration. The Rotterdam District Court ruled that the standard referral in Dutch did not suffice and indeed quashed the arbitral award. The Court of Appeal in The Hague returned this decision. The case was then brought before the Netherlands Supreme Court.

Held: The Netherlands Supreme Court confirmed the decision of the Court of Appeal. If Petermann would not have understood the Dutch small print, it should have asked for clarification. Petermann is an international player and as such it is supposed to be familiar with similar standard referrals and the implications thereof. It should not have disregarded the text. By accepting the quotation, it implicitly also accepted the applicability of the FENEX-conditions, inclusive of the arbitration clause.

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