THE BOTTOM LINE
- Review Your B2C Contracts: A standard arbitration clause in your general terms and conditions is unenforceable against a consumer unless it explicitly grants them at least one month to opt for the regular court system after you invoke the clause.
- International Reach: This Dutch consumer protection applies even if your customer resides outside the Netherlands, as long as your agreement is governed by Dutch law. A foreign address does not weaken their rights.
- Procedural Traps: Even if a consumer acknowledges the general applicability of your terms in their initial claim, they are not prevented from later challenging a specific clause within those terms as unfair.
THE DETAILS
This case involved a lawsuit against an international relocation company, Gerson Relocation B.V., filed by a private customer after personal belongings were allegedly lost during a move from Switzerland to the United States. Gerson immediately sought to have the case dismissed, arguing that the District Court had no jurisdiction. The company pointed to its standard terms—the Dutch Forwarding Conditions—which contained a clause mandating that all disputes be resolved through FENEX arbitration, effectively bypassing the public court system.
The District Court of Rotterdam centered its analysis on a key principle of Dutch consumer protection law. It first established that the contract was governed by Dutch law and that the customer was acting as a consumer. The court then examined the validity of the arbitration clause under Article 6:236(n) of the Dutch Civil Code. This provision is part of a “blacklist” of contractual terms that are automatically considered unreasonably onerous, and therefore voidable, when imposed on a consumer. The law makes an exception only if the clause gives the consumer a clear choice: a period of at least one month to opt for the legally competent court after the business has stated its intent to go to arbitration.
The court found Gerson’s arbitration clause did not meet this strict requirement. It failed to include the mandatory one-month opt-out period for the consumer. Gerson argued that, in practice, the consumer had known about the company’s intent to enforce the clause for over a month, but the court dismissed this as irrelevant. The right to choose must be explicitly stated within the clause itself. The court also rejected the argument that the consumer, living abroad, was not entitled to this protection. Since Dutch law governed the contract, its mandatory consumer safeguards applied in full. The court therefore declared the arbitration clause invalid and confirmed its own jurisdiction to hear the merits of the case.
SOURCE
Source: Rechtbank Rotterdam
