ECLI:NL:RBAMS:2021:2994

Uitspraak

judgment

AMSTERDAM DISTRICT COURT

Netherlands Commercial Court

NCC District Court – Court in Summary Proceedings

Case number: NCC 20/026 (C/13/697136)

Judgment

11 June 2021

Claimant

[CLAIMANT]
“[claimant]”

[city], [state], USA

lawyers: A.F.J.A. Leijten, A.F. Fernhout, T. Heikens and B. Stevens, Amsterdam

v.

Defendants

1. [DEFENDANT 1]

“[defendant 1]”

[city], Switzerland (elected domicile: Amsterdam, the Netherlands)

lawyers: J.W. de Groot, A.E.H. van der Voort Maarschalk, L. Tolatzis and C.J.S. de Bruin, Amsterdam

2. [ [DEFENDANT 2],

“[the Holding]”

[city], the Netherlands

lawyers: R. Le Grand, R.M. Leeuwenburgh and S.J.A. van de Kerkhof, Rotterdam.

Counsel are members of the Netherlands Bar Association. The term “lawyer” above has the meaning as defined in Article 3.1.1 Netherlands Commercial Court Rules (NCCR).

Procedural history

1.1.On 25 November 2020, [claimant] issued the writ of summons against [defendant 1], [the Holding], and its co-defendants [co-defendant 1] (“[co-defendant 1]”, Amsterdam) and [co-defendant 2] (“[co-defendant 2]”, a company incorporated under the laws of Luxembourg), and uploaded it to eNCC.

1.2.The Court scheduled a case management hearing to be held on 11 December 2020. On the request of the parties, this hearing was postponed.

1.3.On 7 January 2021, a case management hearing was held. This was done by videoconference as a result of COVID-19 government measures. The Court dismissed the motion made by [defendant 1] to hold the hearing behind closed doors and set a timetable for the next steps.

1.4. [claimant] served a writ of rectification on [the Holding] on 12 January 2021.

1.5. [defendant 1] and [the Holding] submitted their statements of defence on 26 and 28 January 2021 respectively.

1.6.On 27 January 2021, the Court communicated to the parties that it would deal with the repeated requests for holding hearings behind closed doors and the motion on jurisdiction at the hearing on the merits and not before.

1.7.On 29 January 2021, minutes before the start of the hearing on the merits, [defendant 1] and [the Holding] filed a statement of deference. [claimant] submitted an amendment of claim. At the hearing, the parties informed the Court that they had made the following arrangements:

withdrawal of [claimant]’s claims against co-defendants [co-defendants 1 and 2], without prejudice,

postponement of the proceedings against [defendant 1] and [the Holding],

[claimant], [defendant 1] and [the Holding] waived their right to a hearing,

[defendant 1] and [the Holding] withdrew all defences raised in this case, waived their right to submit new ones and deferred judgment to the Court,

the parties continued their settlement negotiations.

1.8.The Court ordered that the case be stayed until 30 April 2021, or any earlier date requested by any party. The Court granted the parties’ request to extend this deadline to 28 May 2021.

1.9.On 28 May 2021, the Court set judgment for 11 June 2021, unless the parties requested the Court otherwise by Wednesday 2 June 2021 at the latest. By letter dated 31 May 2021, [claimant] confirmed its wish to have judgment given in this case. No message from [defendant 1] and [the Holding] was received.

Facts – background

2.1. [claimant] is a diversified asset management and investment firm with interests in sports. In 2014, it acquired 50% of the shares (the “Shares”) in an equestrian show jumping business (the “Company”) from Mr [Y] (“[Y]”), who had previously been the sole beneficial owner.

2.2. [defendant 1] is a German businessman and investor. He is the ultimate beneficial owner of [the Holding] and chairman of its advisory board.

2.3.At some point in time, [claimant] expressed a desire to sell the Shares. In 2018, [Y] introduced [defendant 1] (acting on behalf of [the Holding]) to [claimant] as a possible buyer of [claimant]’s shares in the Company.

On 13 May 2020, [claimant], [Y], [defendant 1] and [the Holding] signed a Global Champions Settlement Agreement (the “Settlement Agreement”) which in essence deals with the sale of the Shares from [claimant] to [defendant 1] for a purchase price of EUR 169,000,000. Closing of the sale was to take place in Amsterdam on 16 November 2020. In the run-up to that date, [defendant 1] was entitled to pay the purchase price in instalments. The relevant provisions of the Settlement Agreement are cited below.

“(…)

Article 3 Settlement Transaction:

(…)

i) (…) For the avoidance of doubt, if any of the payments referred to in Sections 3(c). 3(d). 3(e) and 3 (f) above are not paid in full within the time frames set forth therein (any such failure, a “Payment Failure”), the Closing Payment shall remain due and payable in full at the Closing (alongside the portion of the Deposit not already paid, with interest due on such portion of the Deposit at the applicable rate of Section 6:119a Dutch Civil Code as from the original due date, it being understood that such interest component shall not count towards the Purchase Price), without prejudice to any other rights and remedies of Seller, including without limitation pursuant to Section 5(b). 5(e) and/or 15(n).

(…)

4. Closing:

a) The closing of the purchase and sale of the Target Shares (“Closing”) will take place at 10am New York time on November 16, 2020 (the “Closing Date”) at the Amsterdam offices of Stibbe (or such other time, business day and/or place as Buyer and Seller shall agree in a subsequent signed writing, it being understood that if the date of the Closing is so modified, such new date shall thereafter be the “Closing Date” for all purposes). (…)

b) At the Closing, each of Seller and Buyer shall cause to be delivered to the other the deliverables listed in Part I of Annex A (in the case of Seller) and Part II of Annex A (in the case of Buyer). Upon the delivery of the deliverables referred to in the preceding sentence (including without limitation the receipt by Seller of the electronic funds transfer of an amount equal to the Purchase Price from Buyer), the Closing shall be deemed to have taken place (and until such time, the Target Shares shall remain the property of Seller).

(…)

e) In the event that (i) Buyer fails to pay to Seller the amount required by Section 5(b) when due or (ii) Seller fails to pay to Buyer the amount required by Section 5(c) when due, in addition to such unpaid amount owed, Seller (in the case of Section 5(e)(i) and Buyer (in the case of Section 5(e)(ii)) shall also be entitled to: (x) any and all reasonable legal fees and expenses incurred by it in connection with the enforcement and collection of such payment obligation and (y) interest on all such unpaid amount (calculated from and including the original due date until the date such amount is actually paid) at an annual rate equal to (A) 3 month EURIBOR in effect on the date such payment was originally required to be made plus (B) 500 basis points.

(…)

14. Governing Law and Arbitration:

a) This Settlement Agreement is a settlement agreement (vaststellingsovereenkomst) within the meaning of Article 7:900 et seq of the DCC, and the transactions and obligations contemplated by this Settlement Agreement are governed by and shall be construed in accordance with the laws of The Netherlands.

b) All disputes arising out of or in connection with this Settlement Agreement shall be referred to and finally and exclusively adjudicated and settled under the rules of the Netherlands Arbitration Institute as applicable at the time of submission of the request for arbitration (the “Rules”). The Rules are incorporated by reference into this Section 14. The arbitral tribunal shall consist of three (3) arbitrators. In appointing the arbitrators, the list procedure as provided for in the Rules shall apply. The place of arbitration shall be Amsterdam and the arbitration shall be conducted in the English language only. Notwithstanding the foregoing, (i) any Party may apply to the Amsterdam District Court following proceedings in English before the Chamber for International Commercial Matters in the Court in Summary Proceedings (“CSP”) for preliminary injunctive relief or similar interim measures necessary to preserve its rights pending resolution of any dispute arising out of or in connection with this Settlement Agreement through arbitration as contemplated above (with any appeals against CSP judgments being submitted to the Amsterdam Court of Appeal’s Chamber for International Commercial Matters (“Netherlands Commercial Court of Appeal” or “NCCA”)) and (ii) any Party may apply to any other court to the extent necessary to enforce against a Party hereto a judgment obtained pursuant to arbitration, the CSP and/or NCCA in conformity with the preceding provisions of this Section 14(b).

15. Miscellaneous:

(…)

n) Additional Settlement Matters: The Parties hereby agree as follows:

(i) [the Holding] hereby irrevocably accepts the Judgment [given against [the Holding] by the NCC CSP on 29 April 2020] as final, binding, non-appealable and enforceable on it and waives any and all rights to appeal or otherwise contest (or resist the enforcement of) the Judgment, before the Netherlands Commercial Court of Appeal, in arbitration, in ordinary court proceedings on the merits or otherwise. The Judgment shall at all times remain in full force and effect, immediately enforceable in accordance with its terms, until the occurrence of the Closing pursuant to this Settlement Agreement.

(…)”

2.5. [defendant 1] paid the first deposit (EUR 30,000,000), which was due under the Settlement Agreement on 20 May 2020, a couple of days late. He failed to make the payment for the second deposit (EUR 40,000,000) on time (before 13 July 2020).

On 18 Augustus 2020, [defendant 1] signed a notarial Deed of Acknowledgment of Debt (the “Deed”) containing the following relevant provisions:

“(…)

1. ACKNOWLEDGEMENT OF DEBT

1.1.The Debtor [[defendant 1]] hereby acknowledges to owe to the Creditor [[claimant]] the Outstanding Payment in the amount of one hundred and thirty-nine million euros (EUR 139,000,000) on the basis of the Settlement Agreement, without prejudice to any further payment obligations under the Settlement Agreement, including but not limited to interest accruing on the Outstanding Payment.

1.2.The Debtor acknowledges that the entire Outstanding Payment is due and payable in full at the date hereof (volledig opeisbaar):

1.2.1.The Second Deposit was due and payable in full on the thirteenth of July two thousand and twenty; and

1.2.2.The Third Deposit, Final Deposit, and Closing Payment are due and payable in full as from the date hereof and the Debtor acknowledges that this is a deviation from the Settlement Agreement.

1.3.The Debtor hereby acknowledges that the Creditor has the right to accelerate the Closing pursuant to Clause 4(a) of the Settlement Agreement at any time as a result of, among other things, Creditor’s payment default under the Settlement Agreement.

The Debtor acknowledges to owe to the Creditor an amount of three hundred thousand euros (EUR 300,000) as legal fees and expenses owed as of the date hereof, without prejudice to the Creditor’s right to claim further payment of its reasonable legal fees and expenses. The Debtor acknowledges that the amount referred to in the preceding sentence is due and payable in full at the date hereof. The Debtor hereby explicitly acknowledges that the legal fees and expenses are reasonable and waives any right to claim the contrary.

2. INTEREST ON THE OUTSTANDING AMOUNT AND LEGAL FEES AND

EXPENSES

2.1.The Debtor hereby acknowledges that the compounded Dutch commercial statutory interest (wettelijke handelsrente) within the meaning of section 6:119a of the DCC shall accrue on the Second Deposit as from the thirteenth of July two thousand and twenty.

2.2.The Debtor hereby acknowledges that the compounded Dutch commercial statutory interest (wettelijke handelsrente) within the meaning of section 6:119a of the DCC shall accrue on the Third Deposit, Final Deposit, and Closing Payment as from the date hereof.

Interest on the amount specified in Clause 1.4 shall accrue as from the date hereof, calculated from and including the original due date until the date such amount is actually paid, at an annual rate equal to (A) three (3) month EURIBOR in effect on the date such payment was originally required to be made plus (B) five hundred (500) basis points.

(…)

5. DISCLOSURE OBLIGATION

The Debtor shall, within seven (7) calendar days as from the date of this Deed disclose, in writing and supported by documentary evidence, to the Creditor a list of its worldwide income and assets, including but not limited to the nature, value and location of any such assets and any encumbrances and attachments thereon and shall provide any further information at the Creditor’s first request. In the event of any change to the Debtor’s worldwide income or assets the Debtor shall inform, in writing and supported by documentary evidence, the Creditor without delay of such change. In the event that for whatever reason the Debtor is not in the position to disclose the information within the meaning of this Clause 5 to the Creditor, the Debtor shall disclose such information to a bailiff (gerechtsdeurwaarder) of Gerechtsdeurwaarderskantoor Groot & Evers B.V. in Amsterdam.

6. SECURITY RIGHTS

The Debtor shall ensure, at the Creditor’s first request, that security or additional security is provided to the Creditor, or a person designated by it, in the form, substance and amount desired by the Creditor and created on any assets designated by the Creditor, for the performance of any and all present or future obligations of the Debtor to the Creditor on any basis whatsoever including, but not limited to, the Settlement Agreement.

(…)

9. APPLICABLE LAW AND INTERNATIONAL JURISDICTION

This Deed and the enforcement thereof is governed by and shall be construed in

accordance with the laws of the Netherlands.

All disputes arising out of or in connection with this Deed shall be referred to and finally and exclusively adjudicated and settled under the rules of the Netherlands Arbitration Institute as applicable at the time of submission of the request for arbitration (the “Rules”). The Rules are incorporated by reference into this Clause 9. The arbitral tribunal shall consist of three (3) arbitrators. In appointing the arbitrators, the list procedure as provided for in the Rules shall apply. The place of arbitration shall be Amsterdam and the arbitration shall be conducted in the English language only. Notwithstanding the foregoing, (i) any Party may apply to the Amsterdam District Court following proceedings in English before the Chamber for International Commercial Matters in the Court in Summary Proceedings (“CSP”) for preliminary injunctive relief or similar interim measures necessary to preserve its rights pending resolution of any dispute arising out of or in connection with this Deed through arbitration as contemplated above (with any appeals against CSP judgments being submitted to the Amsterdam Court of Appeal’s Chamber for International Commercial Matters (“NCCA”)) and (ii) any Party may apply to any other court to the extent necessary to enforce against a Party hereto a judgment obtained pursuant to arbitration, the CSP and/or NCCA in conformity with the preceding provisions of this Clause 9.

(…)”

On 22 August 2020, [the Holding], [co-defendants 1 and 2] (the “Guarantors”) entered into a Guarantee Agreement with [claimant]. The relevant provisions are cited below.

“(…)

BACKGROUND:

(A) The Buyer [[defendant 1]], [the Holding] Holding B.V. (“[the Holding]”) and certain other parties are parties to the Global Champions Settlement Agreement dated 13 May 2020 (the “Settlement Agreement”).

(B) The Buyer and the Payee [[claimant]] entered into a deed of acknowledgment of debt dated 18 August 2020 (the “Deed”). In the Deed, the Buyer acknowledged, inter alia, to be in default of his obligations under the Settlement Agreement and agreed to pay all outstanding amounts under the Settlement Agreement.

(C) Each Guarantor has executed and delivered to Payee this Guarantee Agreement

guaranteeing, by way of its own and independent obligation (bij wege van eigen zelfstandige en abstracte verbintenis) and not as surety (borg) or joint and several debt (hoofdelijkheid), all monetary payment obligations of Buyer under the Settlement Agreement and the Deed (including, for avoidance of doubt, the Second Deposit and all other current and future obligations of Buyer) (the “Guaranteed Obligations”).

(…)

2. GUARANTEE

On demand guarantee

(a) Each Guarantor hereby irrevocably and unconditionally guarantees, by way of an independent obligation (bij wege van eigen zelfstandige en abstracte verbintenis) to the Payee the due and punctual payment of the Guaranteed Obligations.

(b) The guarantee under (a) above does not constitute a surety (borg) within the meaning of title 7.14 of the Dutch Civil Code (“DCC”) or a joint and several debt (hoofdelijkheid) within the meaning of title 6.2 DCC.

(c) Each Guarantor undertakes to the Payee, upon first written request from the Payee, without a notice of default (ingebrekestelling) being sent or required, to pay to the Payee the amount due under the Guaranteed Obligations to an account named by the Payee, without any obligation on the Payee to provide any further details.

(…)

6. COSTS

Each Guarantor shall, within five (5) business days of demand therefore, reimburse the Payee for all fees and expenses incurred hereunder or in connection with this Agreement, including but not limited to, for the avoidance of doubt in connection with the enforcement and collection of any and all amounts owed to Payee under this Agreement. Any amount not timely paid to Payee under this Clause 6 shall accrue interest at the Dutch commercial statutory interest rate within the meaning of section 6:119a DCC.

(…)

9. GOVERNING LAW AND JURISDICTION

(a) This Agreement and any non-contractual obligations arising out of or in connection with it are governed by and construed in accordance with the laws of the Netherlands.

(b) All disputes arising out of or in connection with this Agreement shall be referred to and finally and exclusively adjudicated and settled under the rules of the Netherlands Arbitration Institute as applicable at the time of submission of the request for arbitration (the “Rules”). The Rules are incorporated by reference into this Clause 9. The arbitral tribunal shall consist of three (3) arbitrators. In appointing the arbitrators, the list procedure as provided for in the Rules shall apply. The place of arbitration shall be Amsterdam and the arbitration shall be conducted in the English language only. Notwithstanding the foregoing, (i) any Party may apply to the Amsterdam District Court following proceedings in English before the Chamber for International Commercial Matters in the Court in Summary Proceedings (“CSP”) for preliminary injunctive relief or similar interim measures necessary to preserve its rights pending resolution of any dispute arising out of or in connection with this Settlement Agreement through arbitration as contemplated above (with any appeals against CSP judgments being submitted to the Amsterdam Court of Appeal’s Chamber for International Commercial Matters (“Netherlands Commercial Court of Appeal” or “NCCA”)) and (ii) any Party may apply to any other court to the extent necessary to enforce against a Party hereto a judgment obtained pursuant to arbitration, the CSP and/or NCCA in conformity with the preceding provisions of this Clause 9(b).

(…)”

2.8.On 16 September 2020, [claimant] sent a notice to each of the Guarantors demanding payment of the guaranteed obligations.

Claim

3.1. [claimant] requests the Court to award the following claims, by judgment enforceable notwithstanding appeal.

Claims against [defendant 1]:

I. to order [defendant 1] to pay to [claimant] an amount of EUR 136,859,016.39;

II. to order [defendant 1] to pay to [claimant] the accrued interest on an amount of EUR 136,800,000, calculated as follows:

a. statutory commercial interest (wettelijke handelsrente) within the meaning of Section 6:119a Dutch Civil Code (DCC) on an amount of EUR 37,500,000 as from 13 July 2020,

b. statutory commercial interest (wettelijke handelsrente) within the meaning of Section 6:119a DCC on an amount of EUR 99,000,000 as from 18 August 2020, and

c. contractual interest at 5.253% per annum (compounded) on an amount of EUR 300,000 as from 18 August 2020;

III. to order [defendant 1] to provide to [claimant] the following documents:

a. the Assignment and Assumption of Interest for 50% of the membership interests in GCT USA, in the form attached to the Settlement Agreement as Annex A, executed by [defendant 1]; and

b. the Waiver and Release, in the form attached to the Settlement Agreement as Annex A, executed by [defendant 1], [the Holding], [Y], [Y] B.V., [Y] Trading Belgium BVBA, JT Sports Holding B.V., Global Champions (Belgium) GCL B.V., Global Champions Tour USA LLC, [Y] Equestrian Events B.V., Global Champions Tour B.V., Global Champions GCL B.V., Concours Hippique Valkenswaard B.V., Equestrian Event Organizers UK Ltd, Equestrian Event Organizers Switzerland S.a r.l., Paris Equestrian Event Organizations SAS, and Berlin Equestrian Events GmbH,

subject to a penalty of EUR 1,000,000 for each day or part thereof that [defendant 1] fails to comply with the foregoing;

IV. to order [defendant 1] to disclose, within 7 calendar days as from the date of the judgment, in writing, detailed, specified and supported by documentary evidence, to [claimant] and/or its lawyers and/or a bailiff (gerechtsdeurwaarder), a list of his Dutch and worldwide income and assets, whether or not they are in his own name or held directly or indirectly, whether they are solely or jointly owned and whether he has an interest in them legally, beneficially or otherwise, including but not limited to the nature, value and location of any such assets and any encumbrances and/or attachments thereon, and including but not limited to the following documents:

a. the worldwide tax returns for the fiscal years 2015 to 2020 inclusive;

b. any and all agreements and any amendments thereto pertaining to: (i) Allto Trust, Alto Trust and/or Atlo Trust; and (ii) each other trust settled directly or indirectly by [defendant 1] or of which he has the benefit, or in respect of which he holds powers including but not limited to Imperial Trust, Impact Trust, OHP Settlement Trust and Exchange Trust, including but not limited to the trust agreements for each such trust and any amendments thereto; (iii) agreement(s) and any amendments thereto with the legal entity under Swiss law Zuglex Trustee AG; (iv) agreement(s) and any amendments thereto with the legal entity under Guernsey law Serene Holdings Ltd. and/or any other settlor; and (v) agreement(s) with [Z] and/or any other protector;

c. complete personal financial statements;

d. copies of all instruments evidencing or securing indebtedness of [defendant 1] or any entity controlled by him or which provide security over any asset of [defendant 1];

e. a complete list of each bank account, brokerage account, securities account and any other financial account of [defendant 1], along with all statements for each such account for the last year and on a go-forward basis, including in each case the location where such accounts are held and at which bank and/or financial institution such accounts are held and whether or not such account is subject to a security interest by any third party;

f. the location of each vehicle (including without limitation each aircraft and boat) owned by [defendant 1] or of which he has the benefit;

g. all agreements and any amendments thereto with respect to each direct or indirect personal investment of [defendant 1] (and any other evidence of ownership of any personal investment);

h. a list of and the organisational documents for each legal entity controlled directly or indirectly by [defendant 1] or in which [defendant 1] has direct or indirect beneficial ownership,

and subsequently after the expiry of each 30 calendar days from the date of the judgment (and with respect to any movable asset, immediately upon such asset being moved) again disclose such information,

all of the foregoing subject to a penalty of EUR 1,000,000 for each day or part thereof that [defendant 1] fails to comply with the foregoing with no maximum; and

V. to order [defendant 1] to, within 7 calendar days as from the date of the judgment, to create or cause to be created a pledge (pandrecht), mortgage (recht van hypotheek), or similar security in favour of [claimant] on the following assets:

a. Airplane: 2020 Bombardier Global [number],

b. Airplane: 2014 Bombardier Global [number],

c. Airplane: 2003 Bombardier Global Express [number],

d. Helicopter: Airbus Helicopter EC155B [number],

e. Each other aircraft, vessel or other vehicle owned directly or indirectly by [defendant 1] and/or the shares owned by [defendant 1] in any legal entity directly or indirectly owning such aircraft, vessel or other vehicle,

f. Each bank account, brokerage account, securities account and any other financial account of [defendant 1],

g. All equity interests in each legal entity legally owned or controlled by [defendant 1], including without limitation Serene Holdings Ltd., Lynx Aircraft Ltd., Lynx Aviation (Isle of Man) Ltd., Catena Aviation Ltd., [the Holding] and its subsidiaries, and

h. Any and all direct or indirect disbursements, payments or other monetary or nonmonetary benefits (including the use of the yacht, Global) provided to [defendant 1] by any of his trusts, including without limitation Allto Trust and/or Alto Trust, Atlo Trust, Imperial Trust, Impact Trust, OHP Settlement Trust and Exchange Trust,

and to determine

A. principally: that [claimant] is fully authorised (gemachtigd) to arrange for such security on [defendant 1]’s behalf as an attorney in fact and to do all that useful, to undertake all legal action that is required and to execute and sign all documentation on [defendant 1]’s behalf that is useful in that regard; or

B. in the alternative: a penalty of EUR 1,000,000 for each day or part thereof that [defendant 1] fails to comply with the foregoing with no maximum,

Claims against [the Holding]:

VI. to order [the Holding] to pay to [claimant] an amount of EUR 140,137,704.93;

VII. to order [the Holding] to pay to [claimant] at its first written request the amount due by [defendant 1] under the Settlement Agreement and the Deed of Acknowledgment coming into existence after the date of this writ of summons;

VIII. to order [the Holding] to disclose, in writing, detailed, specified and supported by documentary evidence, to [claimant] and/or its lawyers and/or a bailiff (gerechtsdeurwaarder), a list of its Dutch and worldwide income and assets, including but not limited to the nature, value and location of any such assets and any encumbrances and/or attachments thereon and subsequently after the expiry of each 30 calendar days from the date of the judgment again disclose such information,

all of the foregoing subject to a penalty of EUR 1,000,000 for each day or part thereof that [the Holding] fails to comply with the foregoing;

IX. to order [the Holding] to sign the Waiver and Release, in the form attached to the Settlement Agreement as Annex A, subject to a penalty of EUR 1,000,000 for each day or part thereof that [the Holding] fails to comply with the foregoing;

Claims against both defendants:

X. principally: to order [defendant 1] and [the Holding] to pay to [claimant] the actual legal fees (werkelijke proceskosten) and expenses incurred as from 18 August 2020, with accrued contractual interest at an annual rate equal to 3-month EURIBOR (in effect on the date such payment was originally required to be made) plus 500 basis points, calculated as from the original due date of the legal fees and expenses until the day of payment, or

in the alternative: to order [defendant 1] and [the Holding] to jointly and severally bear the liquidated legal costs (proceskosten volgens het liquidatietarief) of the action, including subsequent costs at EUR 157 without service and EUR 246 with service, and – in case the legal costs are not paid within the period set for compliance – with accrued statutory interest (wettelijke rente) as meant in Section 6:119 DCC as from 14 calendar days as from the judgment;

XI. to issue, at the same time of the judgment, certificates within the meaning of Article 53 in connection with Annex I of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.

Discussion

Jurisdiction NCC, use of eNCC, applicable law

4.1.As [claimant] and [defendant 1] are domiciled outside of the Netherlands, this is an international matter. [defendant 1] contested the Court’s jurisdiction in his submissions before the Court, but at a later stage withdrew this defence. That means that the Amsterdam District Court has exclusive jurisdiction under Article 23 or 24 of the 2007 Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. In the various contracts underlying [claimant]’s claims a choice of forum has been made for the NCC Court in Summary Proceedings. Any doubts that may exist regarding the scope of the choice of forum clause are irrelevant, as in the alternative the Amsterdam District Court has jurisdiction on the basis of Article 24 of the Convention.

4.2.Furthermore, the requirements are met for the NCC Court in Summary Proceedings to deal with this case. Articles 1.3.1 and 1.3.2 NCCR reflect Article 30r Dutch Code of Civil Procedure (DCCP), which is the statutory framework for proceedings to be held in English before the NCC District Court and the NCC Court in Summary Proceedings.

4.3.This is a civil or commercial matter, the Settlement Agreement and further agreements pertain to a particular legal relationship within the parties’ autonomy and the matter is not subject to Subdistrict Court jurisdiction or to the exclusive jurisdiction of any other chamber or court.

4.4.In their various agreements, the parties agreed to proceedings in the English language before the NCC.

4.5.No party objected to the use of eNCC in these proceedings. Therefore, eNCC has been used in this matter.

4.6.The parties agreed that Dutch law would apply to any disputes arising out of the agreements. Hence, Dutch law will be applied.

Preliminary matters

4.7.The standard in summary proceedings has three prongs:

a. Is there a sufficient likelihood that the claim has merit?

b. Is an immediate measure urgent and required in summary proceedings?

c. Is there a risk, on a balance of interests, of the defendant party not being able to recover the funds, or undo the measure, if it is ultimately successful on the merits?

4.8.As for claims for money in summary proceedings, the courts should exercise caution in light of the recovery risk. The likelihood of success on the merits is an important factor in the assessment of the recovery risk ((c) above). The court must provide detailed reasoning to explain why the measure is urgent.

4.9.After conclusion of the Settlement Agreement, [claimant] and [defendant 1] took various steps in execution of this agreement. [claimant] also transferred the directorship of the Company to a person designated by [defendant 1] and [defendant 1] made several payments towards the purchase price of the Company. This makes it highly likely that [claimant] has a claim against [defendant 1].

4.10.An immediate measure is also urgent and required. [defendant 1] actually runs the Company without having paid for the Shares. Essentially, [claimant]’s assets are run by someone else who does not run any risk. This is highly undesirable. Furthermore, [claimant] needs to know whether – due to [defendant 1]’s failure to pay the remainder of the purchase price on time – there is the option of selling the Company to a third party, or not, and it needs to know soon. Finally, the defendants do not contest [claimant]’s assertion that [the Holding] is one of the most, if not the most, significant asset of [defendant 1] and likely the most creditworthy guarantor. A Washington Post article dated 17 September 2020 suggests that [the Holding]’s assets have been pledged to a third party. This raises doubts as to the recoverability of [claimant]’s claim, which makes it urgent for [claimant] to get access to these assets.

4.11.The recovery risk is virtually non-existent. The defendants do not dispute that [claimant] is good for its money. Moreover, the existence of the Settlement Agreement makes it highly likely that the money claims would be awarded in any main proceedings on the merits. The defendants do not contest their liability. The only reason for the non-performance appears to be that [defendant 1] has difficulty coming up with the funds.

Assessment of the claims

4.12. [defendant 1] and [the Holding] deferred to the judgment of the Court. This means that they do not dispute the facts and assertions made by [claimant] in substantiation of its claims. Therefore, as a rule, the claims are to be awarded, unless the Court finds that there are insufficient grounds to do so, on the basis of an ex officio assessment of the claims or where the claims are held to be manifestly ill-founded.

The claims against [defendant 1]

4.13.Under the Settlement Agreement and the subsequent Deed of Acknowledgment, [defendant 1] is obligated to pay to [claimant] the purchase price and the accruing interest (Claims I and II).

4.14.The claims for production of documents, disclosure of income and assets and the creation of security have a solid basis in the contract documents as well (Annex A to the Settlement Agreement and Articles 5 and 6 of the Deed). These claims are to be awarded.

4.15.However, there are issues with the way [claimant] seeks to enforce these obligations. A penalty of EUR 1 million per day is too steep, considering the nature of the obligations. The penalty is reduced to EUR 50,000 per day, with a maximum of EUR 50,000,000. The Court will also allow [defendant 1] more time to comply with the orders given.

4.16.On the basis of Article 299 of Book 3 DCC, [claimant] requests authorisation for itself – acting as “an attorney in fact” – to arrange for security on [defendant 1]’s behalf. The creation of security would – however – require the performance of legal acts (rechtshandelingen). Therefore, Article 300 of Book 3 DCC applies. Under this Article only a representative and not a party can be appointed by the court to perform a legal act. Therefore the request must be denied.

The claims against [the Holding]

4.17.Claims VI, VII and IX against [the Holding] are based on a solid foundation. Under Article 2 of the Guarantee Agreement, [the Holding] is obligated, by way of an independent obligation and upon [claimant]’s first written request, to pay to [claimant] the amount due by [defendant 1] under the Settlement Agreement and the Deed. [the Holding] is also required – under Annex A to the Settlement Agreement – to provide [claimant] with the documentation requested.

4.18.The claim to order [the Holding] to disclose its worldwide income and assets (Claim VIII) is not based on any contractual obligation, but on an alleged statutory disclosure obligation. Under Article 475g DCCP, a debtor is obliged to inform the bailiff of all income and assets. This obligation also extends, [claimant] asserts, to a debtor in relation to his creditor. [claimant] refers to a decision given by the Dutch Supreme Court in the case Tripels v. Masson (20 September 1991, ECLI:NL:HR:1991:ZC0338).

4.19.The Court disagrees. The Supreme Court ruled that there is no general statutory obligation for debtors to disclose their income and assets. Only a limited group of persons has the right to ask the debtor to account for his financial whereabouts. [claimant] does not belong to this group. The bailiff engaged by the creditor to enforce a judgment against the debtor can order a debtor to disclose his income and assets. However, there is no enforceable judgment against [the Holding] as yet in this case. In light of the strict approach by the Supreme Court, there are no grounds for extending the disclosure obligation to the creditor himself and to the time period preceding a judgment against the debtor.

4.20. [claimant] seeks a penalty in case of non-performance of the judgment in the amount of EUR 1 million a day. This is not a reasonable amount. The Court reduces the amount to EUR 50,000 per day, with a maximum of EUR 50,000,000.

Costs

4.21. [claimant] has asked the Court to determine and award costs. Principally, it seeks payment of the actual legal fees and expenses incurred as from 18 August 2020. The costs incurred before that date are included in the amounts to be paid under Claims I and VI. [defendant 1] and [the Holding] are liable for these costs under Article 5(e) of the Settlement Agreement and Article 2 of the Guarantee Agreement.

4.22. [claimant] provided the Court with the invoices sent by counsel engaged by [claimant] from 18 August 2020 to late January 2021 (Exhibit 67). In light of the acknowledgment by [defendant 1] of the reasonableness of the costs incurred until 8 August 2020 (EUR 300,000), and in the absence of any defence by [defendant 1] or [the Holding] on this topic, the additional costs are also to be considered “reasonable” within the meaning of Article 5(e) Settlement Agreement.

4.23.The other items in the cost order are the NCC CSP court fee (EUR 7,817) and the costs of service (EUR 100.89 for the summons and EUR 83.38 for the rectification; the rectification was caused by [the Holding]’s initial counsel withdrawing from the case).

Certificate

4.24.EU Regulation No 1215/2012 does not apply to issuing a certificate for enforcement purposes (Claim XI) in this case; the Convention does. The Court will issue the appropriate certificate.

Conclusion and order

THE COURT IN SUMMARY PROCEEDINGS:

defendant 1] is ordered to pay to [claimant] an amount of EUR 136,859,016.39, plus the accrued interest on an amount of EUR 136,800,000, which is calculated as follows:

a. statutory commercial interest (wettelijke handelsrente) within the meaning of Section 6:119a DCC on an amount of EUR 37,500,000 as from 13 July 2020,

b. statutory commercial interest (wettelijke handelsrente) within the meaning of Section 6:119a DCC on an amount of EUR 99,000,000 as from 18 August 2020, and

c. contractual interest at 5,253% per annum (compounded) on an amount of EUR 300,000 as from 18 August 2020.

5.2. [defendant 1] is ordered to provide to [claimant], within 14 calendar days as from the date of this judgment, the following documents:

the Assignment and Assumption of Interest for 50% of the membership interests in GCT USA, in the form attached to the Settlement Agreement as Annex A, executed by [defendant 1], and

the Waiver and Release, in the form attached to the Settlement Agreement as Annex A, executed by [defendant 1], [the Holding], [Y], [Y] B.V., [Y] Trading Belgium BVBA, JT Sports Holding B.V., Global Champions (Belgium) GCL B.V., Global Champions Tour USA LLC, [Y] Equestrian Events B.V., Global Champions Tour B.V., Global Champions GCL B.V., Concours Hippique Valkenswaard B.V., Equestrian Event Organizers UK Ltd, Equestrian Event Organizers Switzerland S.à.r.l., Paris Equestrian Event Organizations SAS and Berlin Equestrian Events GmbH.

5.3. [defendant 1] is ordered to disclose, within 28 calendar days as from the date of this judgment, in writing, detailed, specified and supported by documentary evidence, to [claimant] and/or its lawyers and/or a bailiff (gerechtsdeurwaarder), a list of his Dutch and worldwide income and assets, whether or not they are in his own name or held directly or indirectly, whether they are solely or jointly owned and whether he has an interest in them legally, beneficially or otherwise, including but not limited to the nature, value and location of any such assets and any encumbrances and/or attachments thereon, and including but not limited to the following documents:

the worldwide tax returns for the fiscal years 2015 to 2020 inclusive,

any and all agreements and any amendments thereto, pertaining to: (i) Allto Trust, Alto Trust and/or Atlo Trust; (ii) each other trust settled directly or indirectly by [defendant 1] or of which he has the benefit, or in respect of which he holds powers, including but not limited to Imperial Trust, Impact Trust, OHP Settlement Trust and Exchange Trust, including but not limited to the trust agreements for each such trust and any amendments thereto; (iii) agreement(s) and any amendments thereto with the legal entity under Swiss law Zuglex Trustee AG; (iv) agreement(s) and any amendments thereto with the legal entity under Guernsey law Serene Holdings Ltd. and/or any other settlor; and (v) agreement(s) with [Z] and/or any other protector,

complete personal financial statements,

copies of all instruments evidencing or securing indebtedness of [defendant 1] or any entity controlled by him or which provide security over any asset of [defendant 1],

a complete list of each bank account, brokerage account, securities account and any other financial account of [defendant 1], along with all statements for each such account for the last year and on a go-forward basis, including in each case the location where such accounts are held and at which bank and/or financial institution such accounts are held and whether or not such account is subject to a security interest by any third party,

the location of each vehicle (including without limitation each aircraft and boat) owned by [defendant 1] or of which he has the benefit,

all agreements and any amendments thereto with respect to each direct or indirect personal investment of [defendant 1] (and any other evidence of ownership of any personal investment),

a list of and the organisational documents for each legal entity controlled directly or indirectly by [defendant 1] or in which [defendant 1] has direct or indirect beneficial ownership.

5.4. [defendant 1] is ordered to disclose again such information after the expiry of any further 30 calendar days and to disclose any new location of his movable assets within 7 days of an asset being moved.

5.5. [defendant 1] is ordered to, within 56 calendar days as from the date of the judgment, to create or cause to be created a pledge (pandrecht), mortgage (recht van hypotheek), or similar security in favour of [claimant] on the following assets:

Airplane: 2020 Bombardier Global [number],

Airplane: 2014 Bombardier Global 6000 [number],

Airplane: 2003 Bombardier Global Express [number]

Helicopter: Airbus Helicopter EC155B [number],

Each other aircraft, vessel or other vehicle owned directly or indirectly by [defendant 1] and/or the shares owned by [defendant 1] in any legal entity directly or indirectly owning such aircraft, vessel or other vehicle,

Each bank account, brokerage account, securities account and any other financial account of [defendant 1],

All equity interests in each legal entity legally owned or controlled by [defendant 1], including without limitation Serene Holdings Ltd., Lynx Aircraft Ltd., Lynx Aviation (Isle of Man) Ltd., Catena Aviation Ltd., [the Holding] and its subsidiaries,

Any and all direct or indirect disbursements, payments or other monetary or nonmonetary benefits (including the use of the yacht, Global) provided to [defendant 1] by any of his trusts, including without limitation Allto Trust and/or Alto Trust, Atlo Trust, Imperial Trust, Impact Trust, OHP Settlement Trust and Exchange Trust.

5.6.Non-compliance with any of the orders given under 5.2, 5.3, 5.4 and 5.5 results in [defendant 1] having to pay a penalty of EUR 50,000 for each day or part thereof that he fails to comply, with a maximum of EUR 50,000,000

5.7. [the Holding] is ordered to pay to [claimant] an amount of EUR 140,137,704.93.

5.8. [the Holding] is ordered to pay to [claimant] at its first written request the amount due by [defendant 1] under the Settlement Agreement and the Deed of Acknowledgment coming into existence after the date of the writ of summons.

5.9. [the Holding] is ordered to sign, within 7 calendar days as from this judgment, the Waiver and Release in the form attached to the Settlement Agreement as Annex A.

5.10.Non-compliance with the order given under 5.9 results in [the Holding] having to pay a penalty of EUR 50,000 for each day or part thereof that it fails to comply, with a maximum of EUR 50,000,000.

5.11. [defendant 1] and [the Holding] are ordered to pay the actual legal fees (werkelijke proceskosten) and expenses incurred as from 18 August 2020, with accrued contractual interest at an annual rate equal to 3-month EURIBOR (in effect on the date such payment was originally required to be made) plus 500 basis points, calculated as from the original due date of the legal fees and expenses until the day of payment.

5.12.The Court will issue a certificate as meant in Article 54 of the 2007 Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.

5.13.This judgment is enforceable notwithstanding appeal.

5.14.All other claims are denied.

Done by M.A.M. Vaessen, Judge, assisted by W.A. Visser, Clerk of the Court.

Issued in public on 11 June 2021.

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