This case is about a share purchase agreement (SPA) entered into by the shareholders of Stakelogic (Triple Bells) and a Japanese multinational in the gaming industry (Sega Sammy). In these summary proceedings, Triple Bells requests the NCC - which has jurisdiction on the basis of a choice-of court clause - to order Sega Sammy to perform its obligations under the SPA and close the transaction (i.e. transfer the shares and pay the purchase price).

The parties disagree on how the SPA is to be construed. More specifically, they disagree about whether the conditions precedent have been fulfilled and whether Sega Sammy has a right to rescind the SPA. The construction of the SPA is governed by Dutch law (Clause 20.1 SPA). In light of the circumstances of the case, the Court gives decisive weight to the most obvious text-based meaning of the provisions of the SPA.

The Court does not consider it likely that a court in any main proceedings would rule that the conditions precedent (Clause 4.1) have not been fulfilled. The purpose of including conditions precedent in a share purchase agreement is twofold: (i) to safeguard that the most fundamental conditions for the transaction have been satisfied before the transaction is completed, and (ii) to have deal certainty if and when these conditions have been satisfied. Ascertaining whether or not Stakelogic infringed any regulatory laws would require an in-depth research into Stakelogic's actions and activities in all relevant jurisdictions, which is incompatible with this purpose. 

Even if Triple Bells breached certain pre-completion undertakings, as Sega Sammy claims in order to substantiate its right to rescind the SPA, the Court finds it likely that a court dealing with the main proceedings would construe Clause 19.9 of the SPA to mean that both seeking in-court and out-of-court rescission is barred. Any breaches can only be remedied by an action for damages.

Extraordinary circumstances could make relying on the waiver in Article 19.9 SPA unacceptable in light of the principles of reasonableness and fairness (Article 6:248(2) Dutch Civil Code). If the transaction (i.e. making Stakelogic an intricate part of Sega Sammy's operations) would have a serious impact on the licences Sega Sammy now holds and could even result in criminal charges brought against Stakelogic and/or Sega Sammy itself, this would qualify as an extraordinary circumstance as mentioned above. No company can be forced to take such risks. However, the Court does not find that it is likely that these risks will materialise. Therefore, the Court will order Sega Sammy to complete the transaction.