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Bangladesh v. Tulip Computers

2009 October 12
by Philippine Beerman

The People's Republic of Bangladesh v. Tulip Computers International

Court: Netherlands Supreme Court

Date: October 2, 2009

LJN Number: BJ1249

Case: In 2001 the State of Bangladesh entered into an agreement with Tulip Computers in the Netherlands for the sale and purchase of computers and computer courses. In November 2002, Tulip commenced legal proceedings before the District Court in 's-Hertogenbosch (The Netherlands) to have the agreement rescinded. Tulip also claimed damages from Bangladesh for an alleged breach of contract by Bangladesh (which, allegedly was connected to a regime change in Bangladesh). On May 14th, 2003, this led to a default judgment against Bangladesh, in which the agreement was rescinded and damages to an amount of € 4,216,648.– were awarded to Tulip.

On November 15th, 2004 Bangladesh issued a writ and thus initiated proceedings to have set aside the default judgment. The court decided that the claim by Bangladesh was non-admissible, as it had not been filed in due time. The Dutch Code of Civil Procedure regulates, that a foreign party may start proceedings to set aside a default judgment rendered against it within eight weeks after the foreign party has committed a so-called act proving that it had knowledge of the default judgment.

It appeared that Tulip had tried to enforce the Dutch judgment in Scotland. During these Scottish proceedings, Bangladesh's lawyer had filed a "note" to the court, from which it was apparent that Bangladesh had knowledge of the Dutch default judgment. As this note was filed on the 16th of September, 2004, this meant that the proceedings by Bangladesh in The Netherlands had commenced outside the eight week deadline (in fact, just few days too late, as eight weeks after the 16th of September 2004 would have been the 11th of November 2004).

Bangladesh argued before the Netherlands Supreme Court that the note filed during the Scottish proceedings only proves that its Scottish lawyer had knowledge of the default judgment; The State of Bangladesh itself had not committed any act proving knowledge of the default judgment. The Dutch decision had, however, already been referred to at an earlier date in the Scottish proceedings. The court had decided on May 7, 2004: "The Lord Ordinary (…) grants warrant to the Keeper of Registers of Scotland to register the certified copy of the Judgment of the Court of Hertogenbosch, Holland at the instance of Tulip Computers International BV against the People’s Republic of Bangladesh (Ministry of Education) dated 14 May 2003 for payment of € 4,216,648.00 together with interest (…)". This court decision was attached to the aforementioned note of September 16th, 2004 filed on behalf of Bangladesh, and it was also referred to in said note.

Held: The contents of the note unambiguously prove that the Scottish lawyer representing Bangladesh had knowledge of the default judgment on the 16th of September 2004. The exact instructions given by Bangladesh to its Scottish lawyer are not relevant, as under Dutch law, documents submitted to a court by a lawyer as well as statements made during proceedings by a lawyer are directly attributable to his / her client. Therefore, the fact that Bangladesh had argued that its instructions to the Scottish lawyer did not mention the default judgment is not relevant when deciding whether proceedings had been lodged within the time period stipulated in the Dutch Code of Civil Procedure. Filing the note with the Scottish court referring to the Dutch default judgment, is an act directed at the outside world, proving knowledge of the main components of the Dutch default judgment. The decision not to admit the claim by Bangladesh was therefore upheld by the Netherlands Supreme Court.

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