Dealing with the battle of forms under the laws of the Netherlands
The battle of forms is a problem that frequently arises under Dutch law during contractual negotiations, when both parties attempt to apply their own set of algemene voorwaarden (general terms and conditions) to the transaction or contractual relationship. What does Dutch law provide if a party makes an offer referring to his own terms, whereas the opposing party accepts the offer on condition that his terms apply to the overeenkomst?
Conflict between general terms and conditions
The Burgerlijk Wetboek (Dutch Civil Code) addresses the issue of the battle of forms in Article 6:225(3), which codifies the so-called "first-shot rule":
Where offer and acceptance refer to different general conditions, the second reference is without effect, unless it explicitly rejects the applicability of the general conditions as indicated in the first reference.
Is the first-shot rule absolute under Dutch law?
Article 6:225(3) of the Dutch Civil Code establishes the first-shot rule as a default position, not an immutable principle. Courts in the Netherlands may depart from it where the circumstances of a specific transaction clearly point in a different direction.
Dutch legal doctrine treats the first-shot rule as a starting point, not a fixed outcome. The provision itself leaves room for deviation, and courts retain discretion to assess whether the factual context of the negotiations leads to a different result. Therefore, parties cannot assume that an early reference to their own terms automatically settles the matter in every situation.
Furthermore, the rule only operates when both sets of terms have been properly made available to the other party. If one party never received a copy of the other's terms, or had no reasonable opportunity to take note of them, questions of incorporation arise before the first-shot rule even comes into play. The two issues, incorporation and precedence, are logically distinct and must not be conflated.
What alternative approaches exist to the battle of forms in the Netherlands?
Dutch law recognises at least four possible approaches to conflicting sets of general terms: the first-shot rule, the last-shot rule, the soft knock-out rule, and the hard knock-out rule. Each produces a different outcome.
The first-shot rule, as codified in Article 6:225(3) of the Dutch Civil Code, gives precedence to the party who referred to its terms first. In contrast, English law and Article 19 of the CISG (the United Nations Convention on Contracts for the International Sale of Goods) traditionally apply the last-shot rule: the terms referred to in the final document exchanged before contract formation take effect.
A third approach is the soft knock-out rule. Under this model, provisions that appear in both sets of terms, or that are compatible with each other, remain applicable. Where the two sets contradict each other directly, neither provision applies; instead, the default rules of the applicable national law fill the gap, through statutory supplementary law, trade custom, or reasonableness and fairness. French and Belgian law favour this approach. Leading Dutch commentators take the view that the soft knock-out rule would, in many cases, produce a more balanced outcome than the first-shot rule, and advocate its adoption in the Netherlands.
The fourth possibility is the hard knock-out rule. Here, neither party's general terms apply at all when the two sets conflict. The contract is then governed entirely by statutory default rules. This approach prioritises legal neutrality, though it may leave significant gaps in the contractual framework that the parties themselves did not anticipate.
How to make sure that your own general terms and conditions apply under Dutch law
If you want to make sure that your company's algemene voorwaarden apply under Dutch law, you should always try to declare their applicability as early as possible in the negotiations, to prevent the other party from getting the 'first shot' in.
If you are contracting with a non-Dutch party, you should also be aware of the potential applicability of other common battle of forms rules, such as the 'last-shot rule' or the 'knock-out rule.'
If the person or company who you are contracting with is faster and declares the applicability of their general terms and conditions before you do, make sure that you clearly and unequivocally reject the application of their general terms and conditions and state that you wish to contract on the basis of your own general terms and conditions.
Making your general terms and conditions apply and be enforceable against your counterparty can sometimes be tricky, especially if you are contracting with consumers, who enjoy special protections against onerous provisions in general terms and conditions.
What happens when conflicting forum-selection clauses appear in competing general terms under Dutch law?
When each party's general terms contain a different forum-selection clause, a specific form of the battle of forms arises that implicates both Dutch contract law and European procedural rules on jurisdiction.
A forum-selection clause designates which court has jurisdiction over disputes arising from the contract. When two sets of general terms each point to a different court, the question of which clause prevails cannot always be resolved by simply applying the first-shot rule of Article 6:225(3) of the Dutch Civil Code.
Where the Brussels Ibis Regulation applies, that instrument takes precedence over national rules of contract formation as the governing framework for assessing the validity of a jurisdiction clause. Article 25 of Brussels Ibis requires that a valid forum-selection clause reflect a clear and precise expression of agreement between the parties. When competing clauses point to different forums, courts in the Netherlands have held that no sufficient consensus exists to satisfy that requirement. Consequently, no valid forum-selection clause is formed, and the ordinary jurisdictional rules of Brussels Ibis apply instead. This outcome illustrates that the battle of forms can have procedural consequences that reach well beyond the substantive content of the contract.
Why does the choice between battle-of-forms rules matter in international contracts?
International commercial contracts frequently involve parties from different legal systems, each with its own default rule for competing general terms. The applicable rule can therefore differ significantly depending on which law governs the contract.
In practice, international contracts often incorporate standard terms drafted in English and modelled on Anglo-American precedents. Multinationals regularly use a single set of standard purchasing or supply conditions worldwide, regardless of the national law that formally governs a particular transaction. This creates a situation where a contract subject to Dutch law may contain clauses whose origin and intended operation derive from a different legal tradition entirely.
Moreover, the choice of battle-of-forms rule affects the commercial outcome in concrete ways. Under the first-shot rule, the party who sends its terms earliest gains a structural advantage. Under the soft knock-out rule, both parties effectively share the risk that conflicting provisions will not apply. Accordingly, well-advised parties in international transactions should not assume that Dutch domestic rules will automatically resolve a battle of forms dispute; they should address the issue explicitly in the contract itself, either by agreeing on a single set of terms or by specifying which set takes precedence in the event of conflict. Consulting a Dutch lawyer is advisable when drafting such provisions.