Afgebroken onderhandelingen en gebruik voorbehouden (R&P nr. 173) 2009/:Conclusions

Afgebroken onderhandelingen en gebruik voorbehouden (R&P nr. 173) 2009/

Conclusions

Deze functie is alleen te gebruiken als je bent ingelogd.Deze functie is alleen te gebruiken als je bent ingelogd.Deze functie is alleen te gebruiken als je bent ingelogd.

In summary, this study leads me to the following, most obvious conclusions:

1.

There is an undesirable large variety in the application in the lower courts of the principle formulated by the Supreme Court in the judgment of 12 August 2005 (JPO/CBB) that when assuming legally relevant trust in the success of the negotiations a "strict and restraint-demanding standard" has to be met.

2.

In case of lawfully broken off negotiations there is no consistency in the judgements of the lower courts with respect to a) the question under which circumstances a right to compensation of negotiation costs exists, b) which costs are eligible for compensation in this situation and c) what is deemed to be the legal basis of this compensation.

3.

A substantial percentage (16%) of the interviewed company lawyers and attorneys feel that, until the contractual phase has been reached, one should always be able to break off negotiations unilaterally without liability to pay compensation, which does not correspond with current case law.

4.

When establishing the extent of legally relevant trust in the formation of the agreement an objectified subjective test has to be administered where the personal perception of the parties, to the extent in which it was known to the opposite party or should have been known, plays an important role.

5.

The interviewed attorneys and company lawyers are seriously divided about the answer to the question whether invoking a reservation made during the negotiations should always be honoured, while there is consistency in this respect in current case law.

6.

Conditions precedent made during the negotiations may be categorised conclusively, where more legal qualifications are possible per category, depending upon the circumstances of the case.

7.

Unanswered legal questions are to be found in particular in the area of the possible obligation to pay compensation of costs incurred within the context of the negotiations if the negotiations are legally broken off in the pre-contractual phase and in the area of private international law (more in particular as regards the question when the exception rule of article 12 paragraph 2 Rome II applies and to which extent the alternative competence rule of article 5 paragraph 3 of the Brussels I Regulation may be invoked).

Deze functie is alleen te gebruiken als je bent ingelogd.