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CISG-online number
5057
Case name
SK Energy Europe Ltd. v. Trefoil Trading B.V.
Jurisdiction
Netherlands
Court
Rechtbank Rotterdam (District Court Rotterdam)
Judge
P.C. Santema (Sole judge)
Date of decision
11 December 2019
Case nr./docket nr.
C/10/552715 / HA ZA 18-589
Claimant 1
Name
SK Energy Europe Limited
Place of business
United Kingdom
Role in transaction
Buyer
Respondent 1
Name
Trefoil Trading B.V.
Place of business
Netherlands
Role in transaction
Seller
Seller 1
Name
Trefoil Trading B.V.
Place of business
Netherlands
Role in trade
Dealer / Trader
Buyer 1
Name
SK Energy Europe Limited
Place of business
United Kingdom
Role in trade
Dealer / Trader
Category of goods
33: Petroleum, petroleum products and related materials
Goods as per contract
5,400 metric tons of fuel oil (type RMK700)
CISG applicable
no, Art. 6 (exclusion by the parties in their sales contract)
CISG applied
requirements for an exclusion agreement under Art. 6 CISG discussed
(Domestic) law applied in addition
Dutch law
CISG provisions also cited
Art. 1(1)(a); Art. 14; Art. 18; Art. 19; Art. 23
This decision cites the following other CISG-online case 1
Grootscholten v. Vergo Kwekerjien B.V.B.A.
Hoge Raad (Dutch Supreme Court)
Netherlands, 28 January 2005 – C03/290HR, CISG-online 1002
This decision cites the following CISG-AC Opinion 1
CISG-AC Opinion No. 13 ‘Inclusion of Standard Terms under the CISG’ (Rapporteur: Sieg Eiselen), adopted by the CISG Advisory Council following its 17th meeting in Philadelphia (USA) on 20 January 2013
Editorial remark
by Ulrich G. Schroeter
The dispute between a UK trader in bunker oil (SK Energy Europe Ltd., the Claimant) and its Dutch counterpart (Trefoil Trading B.V., the Respondent) arose out of a combined transation consisting of a sale of bunker oil by SK Energy to Trefoil and a subsequent resale of bunker oil by Trefoil to SK Energy. SK Energy alleged that the oil it had received from Trefoil did not have the required quality (being off-spec) and therefore initiated the court proceedings that lead to the present decision. (SK Energy is accordingly listed as "buyer".) The first issue at dispute was the law applicable to the contract: UK buyer SK Energy argued that Dutch law including the CISG applied, while Dutch seller Trefoil argued that Dutch law excluding the CISG applied because the parties had supposedly incorporated the "General Conditions of the Dutch Association of Independent Bunker Suppliers" (NOVE) into their contract. (Clause 17 of the NOVE General Conditions chooses the law of the Netherlands, but excludes the application of the CISG.) In ruling on the alleged incorporation of the NOVE General Conditions into the sales contracts, the District Court applied the CISG and held that the decisive question was whether the UK buyer had been given a sufficient opportunity to take note of the content of the NOVE Conditions. Evaluating the circumstances of the case (the ongoing business relationship between the parties, the fact that the text of the NOVE Conditions had apparently been sent to the UK buyer on one earlier occasion, the Conditions' accessibility on a website), the District Court concluded that a sufficient opportunity to take note of them existed and that the CISG had therefore been excluded. The Court continues to apply Dutch domestic law to the dispute, without further mentioning the CISG. (Interestingly, the Court inter alia strikes down a limitation of liability clause in the NOVE Conditions as unfair and therefore invalid under Dutch law.)
Decision published in 1
Nederlands Tijdschrift voor Handelsrecht (NTHR) (2020), 25 [ – in Dutch]
European Case Law Identifier (ECLI)
ECLI:NL:RBROT:2019:9761
Full text of decision 1
Full text of decision
Original language: Dutch