Uitspraak Nº NCC 21/004 (C/13/667529). Rechtbank Amsterdam, 2022-06-29

• ECLI: ECLI:NL:RBAMS:2022:3747
• Docket Number: NCC 21/004 (C/13/667529)
• Date: 29 Junio 2022
• Court: Rechtbank Amsterdam (Neederland)

judgment

AMSTERDAM DISTRICT COURT

Netherlands Commercial Court

NCC District Court

Case reference number: NCC 21/004 (C/13/667529)

Judgment

29 June 2022

In the matter of:

the company incorporated under foreign law

[X] A.Ş.,

having its registered office and principal place of business at [place] , Türkiye,

claimant in the original action, defendant in the counterclaim,

lawyers: dr. C. Jeloschek and S.A.K. d'Azevedo (Kennedy Van der Laan),

versus

the private company with limited liability

[Y] B.V.,

having its registered office and principal place of business at Barneveld, the Netherlands,

defendant in the original action, claimant in the counterclaim,

lawyers: E.M. Tjon-En-Fa and W. Kroeze (Bird & Bird).

The parties are referred to below as “ [X] ” and “ [Y] ” respectively.

1 Procedural history

1.1.

[X] submitted a writ of summons on 26 March 2021. The exhibits referred to in the writ of summons were submitted separately on 29 March 2021.

1.2.

On 11 August 2021, [Y] filed its statement of defence and counterclaim, with exhibits.

1.3.

[X] filed its statement of defence in the counterclaim on 1 November 2021. The exhibits were submitted separately on the same date.

1.4.

[Y] submitted additional exhibits on 16 November 2021. [X] submitted additional exhibits on 19 November 2021.

1.5.

The hearing was held on 1 December 2021. The lawyers pleaded their cases. Their pleading notes were submitted in eNCC in advance of the hearing. A court record of the hearing was made.

1.6.

On 12 January 2022, [Y] submitted a further written submission and amendment of the counterclaim with exhibits, in response to the Court's request at the hearing to provide more clarity with regard to [Y] 's counterclaims IV, V, VI and VII. On 23 February 2022, [X] filed its statement of response to the further submission in the counterclaim. The exhibits were submitted separately on the same date. On 23 March 2022, [Y] filed its response to the exhibits submitted by [X] . [Y] also submitted exhibits of its own.

1.7.

On 20 April 2022, [Y] filed its further written submission and amendment of the counterclaim with exhibits, as requested by [Y] and as was granted by the Court. On 18 May 2022, [X] filed its statement of response to the further submission in the counterclaim.

1.8.

Subsequently, the date for judgment of the case was set for today.

2 The facts

2.1.

[X] is a Turkish company that, inter alia, operates wind power plants in Türkiye. [A] (“ [A] ”) is CEO and shareholder of [X] . [A] owns several energy related businesses in Türkiye and in Germany, including [BV 1] ( [BV 1] ), a German manufacturer of wind turbines.

2.2.

[Y] is a Dutch company that develops, manufactures and constructs wind turbines. In October 2010, [Y] established a local company in Türkiye called: [Y] Enerji Sanayi Ve Ticaret Anonim Sirketi (“ [Y] Turkey”). [Y] Turkey was subsequently liquidated.

2.3.

In 2012, [X] was planning on constructing a wind power plant at a site near [..] in Türkiye (the “ [..] Project”). At the same time, [Y] intended to expand its reach into Türkiye. After extensive negotiations, [X] and [Y] signed a Sales Agreement and a related Full Service Agreement on 12 September 2013. Under the Sales Agreement, [X] purchased two L100-2.5 MW Wind Turbine Generators (“WTGs”), at the time [Y] 's newest model of WTG, for the [..] Project. The parties agreed on a price of EUR 2,474,000.00 per WTG, i.e. EUR 4,948,000.00 in total. The price was to be paid in several instalments relating to the delivery of the various components of the WTGs, each referred to by the parties as "Milestones". In total, [X] had to pay in eight Milestones to [Y] . On signing the Agreement, the first instalment of 30% of the purchase price was due. [X] had to provide [Y] with an irrevocable letter of credit (the “L/C”) for the remaining seven Milestones. Furthermore and as far as relevant for the dispute at hand, the Sales Agreement contains the following considerations and provisions:

"(…)

Employer [the Court: [X] ] has obtained or will obtain all necessary approvals, permits, licenses and project finance, to build and operate two wind turbine generator(s), type L100-2.5MW (…) at [..] site (…)

Contractor [the Court: [Y] ] has offered to design, produce, deliver, install and commission the WTG('s) (…) at the Site (…)

(…)

Article 3 - Conditions Precedent

3.1 (…)

The Conditions Precedent include:

a. Employer has transferred to Contractor the advanced payment as indicated in article (…) at or before the 18th of September 2013;

b. Employer has provided to Contractor the payment security as indicated in article (…) at or before the 30th of September 2013;

(…)

b. Terminate this Agreement or revise the Contract Price. (...)

In the event of termination of this Agreement based on Article 3.2, Parties will bear its own costs and loss of profits or consequential loss which the termination entails.

(…)

Article 5 - Contract Documents

(…)

5.2.

In case of inconsistencies between this Agreement and the Full Service Agreement (Annex 18 of this Agreement) the Full Service Agreement will prevail as soon as it has come into effect (directly after the Take Over certificate has been signed)(…)

Article 6 - Obligations of Contractor

6.1

The Contractor undertakes:

(…)

b. To comply with all Legal Requirements, security measures, devices, precautions and personal means of protection provided for by the law for the executions of the Works;

(…)

e. To obtain and maintain for the duration of the Agreement, all permits, authorizations, licenses, approvals and consents, necessary for the performance of its obligation under the Agreement.

f. To support the Employer with relevant technical documentation during the project file submission phase of Ministry of Energy in Turkey and also during wind farm's provisional acceptance by Ministry of Energy in Turkey.

Article 7 - Obligations of Employer

7.1

The Employer undertakes:

(…)

d. To obtain and maintain for the duration of the Agreement, all permits, authorizations, licenses, approvals and consents, necessary to build and operate the Plant on the Site;

e. To perform, at its own risk and costs, all necessary activities to allow the Contractor to comply with its obligations under this Agreement, (…);

(…)

(…)

Article 9 - Work Schedule

(…)

(…) In the event the non-compliance of Employer last for more than 180 days, article 3.2 of this Agreement is applicable. In case of termination of this agreement in relation to the above, each Party will bear its own costs, profit loss and consequential damage which arise due to such termination.

(…)

Article 15 - Undertaking and Warranties of Contractor

15.1

Contractor represents and warrants to Employer:

(…)

b. To comply with all applicable Legal Requirements known and in force at the moment this Agreements come into effect (Commencement Date);

(…)

(…)

15.7

Reservation of title

All materials delivered on the Site by or on behalf of the Contractor under this Agreement remain the property of the Contractor until for these materials has been paid for in full by the Employer to the Contractor, until that moment Contractor will exercise the retention right.

(…)

Article 21 - Indemnification and Liability

(…)

21.3

Liquidated damages

In no case shall either Party be liable to the other Party for any direct or consequential losses or damages unless such is explicitly mentioned in any part of this Agreement.

(…)

Article 28 - Miscellaneous

(…)

28.6

Entire Agreement

This Agreement contains and expressly refers to the entire agreement between the Parties with respect to its subject matter and expressly excludes any warranty, condition or other undertaking implied at law or by custom and supersedes all previous agreements and understandings between the Parties with respect to its subject matter and each of the Parties acknowledges and confirms that is does not enter into this Agreement in reliance on any representation, warranty or other undertaking by the other Party not fully reflected in the terms of this Agreement.

(…)

Article 29 - Governing law and arbitration

29.1

Governing law

This Agreement shall be governed by and construed in all respects in accordance with the laws of the Netherlands.

(…)."

2.4.

In addition, the Full Service Agreement states the following:

Article 1 - Definitions and Interpretations

(…)

"Commencement Date" means either the date of this Agreement as stipulated on page 1 of this Agreement or the date of signing of the Final Acceptance Certificate as defined in the Sales Agreement, whichever is the latest.

(…)

Article 11 - Liability

11.1

Within the statutory framework of the applicable law a Party shall be liable for and shall indemnify the

other Party against all losses, expenses and claims in respect of any loss of or damage to physical property, death or personal injury to the extent caused by a negligent act or omission of that Party or the personnel or other employees of that Party during the term of this Agreement. Consequential or incidental damages or losses shall in any case be excluded.

(…)."

2.5.

One of [Y] Turkey's shareholders and board members was [B] (“ [B] ”). In the past, [B] was [Y] Turkey's General Manager. Prior to the conclusion of the Sales Agreement and the Full Service Agreement, [B] wrote to

[C] (“ [C] ”), [X] 's General Director, in a letter dated 8 August 2013, as follows:

"(…)

It is the priority for [Y] NL to expand into Turkey...