The Bottom Line
- Your T&Cs are not a silver bullet: Simply referencing your company’s general terms and conditions in a purchase order is likely not enough to create a legally binding jurisdiction clause with an international partner.
- “Ex Works” means what it says: The contractually agreed place of delivery (like “Ex Works” in Turkey) determines the location of performance, not where goods are ultimately shipped or who arranges the logistics. This is critical for establishing jurisdiction.
- Explicit agreement is essential: To ensure you can sue a foreign supplier in your home court, you need clear, demonstrable proof that they have explicitly agreed to your jurisdiction clause. Assuming acceptance is a recipe for a dismissed case.
The Details
In a cautionary tale for any business with an international supply chain, a Dutch court has declared it has no jurisdiction to hear a case brought by a local buyer, Altech B.V., against its Turkish supplier, Termodinamik. The dispute arose over allegedly defective coatings on stove components that couldn’t withstand the required temperatures. Altech initiated proceedings in the Netherlands, believing its standard terms and conditions, which were referenced at the bottom of its purchase orders, granted Dutch courts jurisdiction. Termodinamik challenged this, arguing they never explicitly agreed to be sued in the Netherlands.
The court sided firmly with the Turkish supplier, providing a crucial lesson on the enforceability of boilerplate clauses in cross-border trade. Applying the EU’s Brussels I-bis Regulation, the judge ruled that a valid forum selection clause requires a true “meeting of the minds” that is clearly and precisely expressed. A fine-print reference to general terms (in this case, the common Dutch “Metaalunievoorwaarden“) does not meet this high standard. The court dismissed the idea that the Turkish company had a duty to search for the terms online, stating that this would impose a “more than normal” level of diligence. Without proof of an explicit discussion and agreement on jurisdiction, the clause was deemed invalid.
Altech’s backup arguments also failed to convince the court. It claimed that since the goods were physically delivered to its facility in the Netherlands, the Dutch courts had jurisdiction based on the place of performance. However, Termodinamik produced evidence showing the agreed delivery term was “Ex Works (EXW) Izmir, Turkey.” The court confirmed that this contractual term, which legally transfers risk and defines the place of delivery at the seller’s factory gate, is what matters for jurisdiction, regardless of who arranged the subsequent shipping. The attempt to frame the breach of contract as a tort claim to create jurisdiction where the damage was felt (in the Netherlands) was also swiftly rejected. The case was dismissed, leaving the Dutch buyer to pursue its claim in Turkey.
SOURCE: Rechtbank Gelderland
