THE BOTTOM LINE
- Long-Tail Risk is Real: This complex dispute over a power plant built more than a decade ago underscores the significant long-term financial and operational risks inherent in major construction projects, even long after completion.
- Documentation and Diligence Win Arguments: The court is awarding or rejecting multi-million euro claims based on how clearly agreements were documented and whether counterclaims were disputed in a timely and specific manner. A failure to sufficiently challenge a claim is being treated as an admission.
- Expert Evidence is Pivotal: Faced with intractable technical and financial disagreements, the court has deferred further legal arguments and witness testimony, choosing instead to appoint an expert. This highlights that in complex cases, the outcome often hinges on independent technical validation, not just legal maneuvering.
THE DETAILS
This long-running legal saga stems from the construction of a coal power plant in the Netherlands. The dispute pits the main contractor, a Dutch-German joint venture (ViMa), against a key Turkish subcontractor (HaSa). HaSa claims millions in unpaid invoices and bonuses, while ViMa has filed substantial counterclaims for damages, alleging widespread defects and demanding the return of previously paid bonuses. In a recent interim ruling, the Arnhem-Leeuwarden Court of Appeal took decisive steps to untangle the complex web of claims but signaled the case is far from over. The court is systematically reviewing dozens of individual claims, highlighting the granular level of detail required to resolve such a large-scale industrial dispute.
In a notable move for legal professionals, the court openly reversed two of its own binding decisions from a previous interim judgment. First, it re-interpreted a liability-sharing agreement for damaged formwork, concluding that the agreed-upon cost split already accounted for potential fault by other parties, thereby relieving the main contractor of the burden of proving the subcontractor was the sole cause of the damage. Second, it determined that a counterclaim could implicitly serve as a valid appeal against a related, previously decided claim, even without a formal grievance. These reversals demonstrate the court’s willingness to correct its course based on a deeper analysis of the facts, offering a critical lesson on the fluid nature of appellate litigation and the importance of persistently arguing the commercial logic of agreements.
Looking ahead, the court has effectively paused further witness testimony to appoint a technical expert. This expert is tasked with investigating a broad range of unresolved issues that are central to the dispute’s outcome. These include validating the work and pricing on contested invoices, determining the actual costs ViMa incurred for defect repairs paid to third parties, and even verifying whether a critical project surcharge—a precondition for a bonus payment to HaSa—was ever paid by the project owner to ViMa. By centralizing these factual disputes with an independent expert, the court aims to establish a firm evidentiary foundation before proceeding, a clear strategy to break the decade-long deadlock and move the case toward a final resolution.
SOURCE
Source: Gerechtshof Arnhem-Leeuwarden
