District Court Gelderland rules on incorporation of standard terms by reference

In its decision in the matter Berg-O-Tool Holding B.V. v. Kingspan Environmental Sp. z o.o. of 9 September 2020, the Dutch Rechtbank (District Court) Gelderland ruled on the incorporation of standard terms and the LCIA arbitration clause contained therein into a CISG contract:

The dispute had arisen from a contract for the sale of multitank systems between the Polish seller Kingspan Environmental Sp. z o.o. and the Dutch buyer Berg-O-Tool Holding B.V. After the buyer had brought the present suit in the Dutch District Court, the Polish seller argued that the court lacked jurisdiction because the parties agreed on LCIA arbitration. In its decision, the District Court discussed in detail whether the Polish seller's standard terms and conditions (including the LCIA arbitration clause) had been incorporated into the contract, applying the standards developed for such an incorporation in international CISG case law interpreting Arts. 7(2), 8 and 14 CISG.

The District Court inter alia addressed whether the seller's generic reference to the "normal terms and conditions of sale" was sufficient given that the seller used various different standard terms, and furthermore discussed whether the terms' full text had been sufficiently made available to the buyer under the circumstances of the case, inter alia by the seller's reference to his internet website. The Court eventually concluded that the standard terms had not been included into the parties' contract, and therefore confirmed its jurisdiction over the case.