Supreme Court Litigation

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Winning the case at the highest level

Part of our DNA

De Brauw has litigated before our highest court since 1871. Our practice is synonymous with the specialist legal and strategic skills, and the detailed and rigorous approach, that these type of cases need. We handle Dutch Supreme Court litigation in all areas of civil and administrative law, with corporate litigation, class actions, employment and intellectual property being our focus.

Challenging the status quo

What happens in society is relevant in Supreme Court cases, as changes in public opinion often influence the law. A constant critique of the status quo is at the core of our litigators' approach. Our 360-degree perspective has led to our forming part of many ground-breaking decisions that touch upon all facets of society.

Setting strategy from the ground up

When taking on a Supreme Court case, we act as the client’s Supreme Court counsel throughout the appeal, working in close consultation with the lawyers who handled the matter during the fact-finding stages. In some cases, we may get involved while the matter is still winding its way in the lower courts when an appeal to the Supreme Court is being contemplated or anticipated. In this scenario, we typically begin by assessing our client’s options of appealing an unfavourable lower court decision, or the possibilities of successfully defending the matter.

Tailored fee arrangements and quick scan

We believe everyone should have access to a Supreme Court review of their case. To support this, we can tailor fee arrangements that reflect the client's financial situation, as well as the impact of the case itself. Recognising the role we can play in society, we have taken on pro bono cases and represented legal-aid clients before the Supreme Court where our expertise was needed.

If you are unsure if obtaining an opinion on cassation as required by the lawyers rules of conduct is the way to go, we can start the process by doing a quick scan and discuss with you whether that would be advisable based on our first reading of the lower court decision. We will then also be estimating related costs. If after reading the quick scan you would like us to issue a detailed opinion on a Supreme Court appeal, our opinion will estimate the costs of starting proceedings before the Supreme Court or of submitting a defence.

Contact us

If you would like to know what we can do for you, please get in touch with our Supreme Court Litigation team at supremecourtlitigation@debrauw.com, or reach out to the individual experts listed on this page.

Recent Matters

24 December 2021

De Brauw secures Supreme Court win for Republic of Kazakhstan

On 24 December 2021, the Supreme Court of the Netherlands ruled in favour of the Republic of Kazakhstan, by annulling an enforcement order granted by the Amsterdam Court of Appeal in 2020. The contested order had allowed the opposing party to enforce a USD 500 million investment arbitration award issued by a Stockholm Chamber of Commerce (SCC) panel. In the Supreme Court proceedings, De Brauw successfully argued that the Amsterdam Court of Appeal did not have subject-matter jurisdiction to decide on the request for an enforcement order against the Republic of Kazakhstan. The Supreme Court also reversed the Court of Appeal's decision to grant the enforcement order, because this decision was given by a court that lacked jurisdiction to do so. The Supreme Court judgment can be found here (in Dutch).
5 November 2021

Supreme Court confirms Tribunal's jurisdiction in Yukos case

On 5 November 2021, the Supreme Court issued a landmark judgment in the setting-aside proceedings against the Yukos Awards. Siding with the former majority shareholders of Yukos, the Supreme Court rejected all the Russian Federation's complaints regarding the Tribunal's and the Hague Court of Appeal's interpretation and application of the Energy Charter Treaty (ECT), thereby confirming the Tribunal's jurisdiction. The Supreme Court remanded the case to the Amsterdam Court of Appeal to further assess the Russian Federation's allegations of fraud in the arbitration, which the Hague Court of Appeal had dismissed on procedural grounds.
19 February 2021

Dutch Supreme Court sets the standard for protection of descriptive trade names in prejudicial decision Dairy Partners/DOC Dairy Partners

The Dutch Supreme Court issued a groundbreaking ruling on 19 February 2021, regarding the scope of protection of “descriptive” trade names.
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Considering an appeal to the Supreme Court?

We can help you weigh your options and decide. We will scan the matter to highlight where the possible points of appeal are, indicate any potential defence(s), and comment on your likelihood of success.

Request an assessment

Having excellent Supreme Court barristers available in all stages of proceedings gives a great advantage.

Legal 500, 2021

Insights

14 March 2022

Dutch Supreme Court rules on collective actions law WAMCA for first time

On 11 March 2022, the highest court in the Netherlands handed down its first ruling on the Resolution of Mass Damage in Collective Actions Act, known as the WAMCA, which came into force in 2020. The Supreme Court confirmed that a request for a preliminary witness hearing in connection with a collective action may be denied if the collective action is unlikely to meet the admissibility criteria under the WAMCA. In addition, the Supreme Court provided guidance on the transitional regime applicable to the WAMCA.
28 June 2021

Taxpayers face difficult choices in seeking resolution for international tax disputes

Multinational companies increasingly face situations where two or more countries seek to tax the same profits. Recently enacted and upcoming legislative changes aim to address the perceived undertaxation of multinationals, and to redistribute taxing rights on corporate profits to "market jurisdictions". The origins of these changes include the OECD's BEPS Project, the political agreement among the G7 on radical changes to the taxation of multinationals, and the ambitious business taxation reforms announced by the European Commission. As the new regulations are likely overreaching, complex and untested and tax authorities are taking a more assertive attitude, risks of multiple taxation will inevitably rise.
16 December 2020

Dutch Supreme Court goes back to roots of participation exemption

For the first time in nearly 18 years, the Supreme Court has had the opportunity to shed light on the applicability of the participation exemption to benefits derived from uncovered call options. In its decision of 6 November 2020, the Supreme Court ruled that only covered call options can constitute a participation within the meaning of the participation exemption under Dutch tax law. By issuing this ruling, the Supreme Court emphasised the ne bis in idem principle that forms the basis of the participation exemption. However, benefits derived from the sale of shares that form a participation are not always exempt. The Supreme Court has reiterated that benefits must originate from an increase in value of the underlying participation. A benefit obtained by using a loophole in regulation – such as benefits obtained from German cum/ex trades – does not qualify as such and therefore cannot be exempt under the participation exemption.

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