Third NCC judgment: claimant barred from bringing its claims under Russian law

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Amsterdam, 04 March 2020

In today's judgment, the Netherlands Commercial Court ruled that claimant (a Russia-based company) is barred from bringing its claims under Russian law as a result of entering into a Settlement Agreement governed by English law. This is the first judgment given by a three-judge panel: the NCC District Court.
The first two judgments were given by a single judge (the NCC Court in Summary Proceedings).

Scope of the Settlement Agreement

This case is about the scope of a release and full discharge provision in a Settlement Agreement governed by English law concluded between claimant (Subsea Survey Solutions, a Russia-based company) and defendant (South Stream, based in Amsterdam).
Subsea initiated proceedings before the NCC District Court, claiming payment by South Stream of an amount in excess of EUR 22 million pertaining to alleged non-contractual damages under Russian law.
The court finds that Subsea - by agreeing to the release and full discharge in the Settlement Agreement - is barred from bringing this claim. Applying English law, the court rules that a reasonable person having all the background knowledge which would have been available to the parties, would have clearly understood that the parties’ intention was to release South Stream from any and all claims under any law, including non-contractual claims under Russian law. Therefore, the court dismisses Subsea’s claims.

Full reimbursement of legal defence costs

In the same judgment the court awards South Stream’s counterclaim to have its full legal defence costs reimbursed, which currently are at least EUR 400,000. The court awards these costs on the basis of Clause 11 of the Settlement Agreement. Subsea’s defence that the costs claimed by South Stream are unreasonable was raised in vain. The court applies Article 242 Dutch Code of Civil Procedure (DCCP). According to paragraph 2 of this Article, the court cannot mitigate costs agreed by parties concerning 'a dispute that has arisen' and which was 'settled' by the parties. That is the case here.

The judgment is available on our website Judgment List).

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