Uitspraak
judgment
AMSTERDAM DISTRICT COURT
Netherlands Commercial Court
NCC Court in Summary Proceedings
Case number: C/13/764975
Interim judgment
31 March 2025
Claimants:
TRIPLE BELLS B.V., incorporated under the laws of the Netherlands, with its corporate seat in Uithoorn, the Netherlands ("Seller I")
TRIPLE BELLS HOLDING B.V.,incorporated under the laws of the Netherlands, with its corporate seat in Uithoorn, the Netherlands ("Seller II")
SALTIUM INVESTMENTS LTD.,incorporated under the laws of Cyprus, having its address in Nicosia, Cyprus ("Seller III")
BETTOR CAPITAL HOLDCO I, LLC, incorporated under the laws of the state of Delaware, United States, having its address in Spring Lake, New Jersey, United States ("Seller IV")
OAKVALE VENTURES LTD., incorporated under the laws of England and Wales, having its registered office in London, United Kingdom ("Seller V")
represented by R.Q. Potter, G.J.P. Freijser and S. Vlassak, lawyers,
Defendants:
SEGA SAMMY CREATION INC.(“Purchaser”)
SEGA SAMMY HOLDINGS INC.(“Guarantor”)
both incorporated under the laws of Japan, having its address in Tokyo, Japan,
represented by A.A.H.J. Huizing, A.B.B. Wilmink and P.J.S de Jong-van den Bogaard, lawyers.
The parties are referred to as Triple Bells and Sega Sammy.
The term ‘lawyer’ has the meaning as defined in Article 3.1.1 NCC Rules of Civil Procedure (NCCR).
1.Procedural history
1.1.
On 25 February 2025, the Court granted Triple Bells permission to serve a summons with notice to appear at a court hearing on the merits of the case, to be held on 28 March 2025. The writ of summons was subsequently served on 13 March 2025.
1.2.
On 25 March 2025, Sega Sammy submitted its statement of defence, including a counterclaim.
1.3.
A courtroom hearing was held on 28 March 2025.
1.4.
Judgment was set for 10 April 2025. However, the Court concluded after the hearing that an interim judgment on a procedural matter was needed before it could decide on the merits. Therefore, this interim judgment was set for today.
2.Discussion
Jurisdiction and applicable law
2.1.
Before turning to the matter at hand, the Court must first, on its own initiative, determine whether the requirements for the Court’s jurisdiction have been met (Article 1.3.4 NCC Rules of Procedure).
2.2.
The Amsterdam District Court has jurisdiction to deal with this case pursuant to Article 25 (and 26) of the Brussels 1bis Regulation, [1] as the parties agreed in a Share Purchase Agreement, dated 26 July 2024 (hereafter: the Agreement) that that court would have jurisdiction (Clause 20.2).
2.3.
The parties chose the Netherlands Commercial Court as the appropriate chamber to deal with all disputes arising out of or in connection with the SPA (Clause 20.2). The internationality requirement (Article 32a DCCP) is fulfilled, as Sega Sammy is domiciled outside of the Netherlands (in Japan). Triple Bells is seeking an interim measure, which means that the NCC Court in Summary Proceedings is the appropriate chamber to deal with this dispute.
2.4.
Clause 20.1 of the SPA provides that the Agreement shall be governed by and constructed in accordance with the laws of the Netherlands. Therefore, the Court will apply Dutch law.
Amendment of claim
2.5.
During the court hearing Triple Bells amended its claim. An amendment of claim must be done in writing (see Article 130 Dutch Code of Civil Procedure, DCCP). This provision also applies to summary proceedings. [2] However, as the amendment is very limited in nature (substitution of the words “Completion Amount” by a specific amount
(€ 120,214,000)) and the clerk recorded this amendment at the hearing, this requirement is fulfilled.
(€ 120,214,000)) and the clerk recorded this amendment at the hearing, this requirement is fulfilled.
2.6.
The legal framework for allowing or disallowing an amendment of claim is (a) whether the amendment is made prior to the Court giving its final judgment and (b) whether the amendment violates due process (Article 130 DCCP). Requirement (a) is fulfilled: the amendment was made at the hearing. However, by making the amendment just before the conclusion of the hearing (at the start of the second round of exchange of arguments by the parties) Sega Sammy was prejudiced by the timing of the amendment. Sega Sammy could not be expected to respond to the specific amount now claimed (instead of an undetermined amount), whereas Triple Bells was aware of Sega Sammy’s defence that the operative part was too vague to be awarded by the Court and had ample time to make and announce its wish to make the amendment. By making the amendment so late, Triple Bells violated due process. The Court therefore denies the amendment.
2.7.
Triple Bells also made a second amendment to the claim, but this was intended to reduce the claim: it did not wish to make the claim under i) subject to a penalty any longer. A reduction of claim is always allowed (Article 129 DCCP). The Court will therefore take this amendment into consideration when dealing with the merits of this case.
Procedural issues
2.8.
Sega Sammy raised several procedural issues which, in its opinion, should result in the Court declaring Triple Bells inadmissible in its claims and/or denying Triple Bells’ claims, because:
one of the Sellers under the Agreement (Bettor Capital HoldCo I-A, LLC, “Seller VI”) was not amongst the claimants initiating these proceedings (
exceptio plurium litis consortium),
exceptio plurium litis consortium),
Triple Bells’ claims are too vague,
the dispute is not suitable for summary proceedings, and
the Guarantor, Sega Sammy Holdings Inc., has been summoned without prior default notice (in Dutch:
rauwelijks gedagvaard)
rauwelijks gedagvaard)
2.9.
As to the first procedural issue, the Court first outlines what the legal standard is in case of plurality of parties. According to Supreme Court case law, any party to proceedings concerning a ‘procedurally indivisible legal relationship’ has the right to request a decision in respect of all other parties involved in that relationship, regardless of which party initiated the proceedings or is defending against the claim. Furthermore, each of them has the right to raise a defence against a claim relating to such a legal relationship, regardless of by and against which party the proceedings are brought. [3] A legal relationship is ‘procedurally indivisible’ if the law requires that a decision on that relationship is the same for all those involved in that relationship. [4] If a party is missing, the court must, on its own initiative or on the basis of a party’s request, order the claimant to give notice to that party to appear in the action pursuant to Article 118 DCCP. [5]
2.10.
The Agreement is considered to be procedurally indivisible, [6] as a decision on the existence or non-existence of that agreement will affect all parties to it, including Seller VI, which is not amongst the claimants in the writ of summons. Without Seller VI as a party in these proceedings, Triple Bells’ claims would be inadmissible.
2.11.
The argument raised by Triple Bells in reply to Sega Sammy’s defence, viz. that Seller II has full authority to represent all Sellers, including Seller VI on the basis of Clause 18 of the Agreement, fails. Under this Clause, Seller II is appointed Sellers’ Representative “to act on its or their behalf for the purposes stated in this Agreement” (Clause 18.1). Litigating under the Agreement is not one of the purposes covered by this provision. Furthermore, the authority is limited to the exercise of “the powers and authorities explicitly conferred by this Agreement upon the Sellers’ Representative” (Clause 18.2). The SPA contains various references to the duties of the Sellers’ Representative. Litigation is not one of them.
2.12.
The statement made by Triple Bells’ counsel at the hearing that he has power of attorney to represent also Seller VI, does not mean that a formal notice of appearance is not needed any more. A party cannot change the capacity in which it initiated the proceedings. [7] Without Seller VI being included as claimant in these proceedings, Triple Bells’ claims remain inadmissible.
2.13.
In line with the Supreme Court’s considerations in its 10 March 2017 judgment, Triple Bells’ claims should not be declared inadmissible forthwith, but Triple Bells should, for reasons of due process, be granted the opportunity to include Seller VI in the proceedings on the basis of Article 118 DCCP. The Court will grant Triple Bells such an opportunity.
2.14.
The above leads to the conclusion that Triple Bells will be ordered to give notice to Seller VI to appear in these proceedings pursuant to Article 118 DCCP. The period to give notice should be as short as possible, given the urgent nature of these proceedings.
3.Conclusion and order
THE COURT
3.1.
orders Triple Bells to give notice to Bettor Capital HoldCo I-A, LLC to appear in these proceedings pursuant to Article 118 DCCP
as soon as possible, but no later than 7 April 2025 at 10 AM,
as soon as possible, but no later than 7 April 2025 at 10 AM,
3.2.
directs that Triple Bells is to notify Bettor Capital HoldCo I-A, LLC that if it wishes to appear in these proceedings, it must - on appearance,
no later than 7 April 2025 at 10 AM- submit a statement on its position in these proceedings (whether it fully supports the position of the other sellers or not), and notify the court on any wish it may have to be heard at a second hearing,
no later than 7 April 2025 at 10 AM- submit a statement on its position in these proceedings (whether it fully supports the position of the other sellers or not), and notify the court on any wish it may have to be heard at a second hearing,
3.3.
the proceedings are stayed pending the outcome of these decisions, including whether 10 April 2025 can be maintained as the judgment date on the merits of the case, or whether the judgment date is to be postponed to a later date, to be notified to the parties.
Done by C.W.D. Bom, Judge, assisted by Mr W.A. Visser, Clerk of the court.
Issued in public on 31 March 2025.
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