NETHERLANDS Law and Practice Contributed by: Sebastiaan Bennink, Nicolas Burnichon, Siqi Zhao and Daniel Webb, Bennink Dunin-Wasowicz
5. Trade and Export Restrictions 5.1 Services Certain EU sanctions regimes contain multiple import and export bans on services to or from other coun - tries, including: • technical assistance, brokering services or financ - ing or financial assistance related to prohibited exports of goods; • reloading services to certain ships; • services related to liquefied natural gas projects; • investment services; • banking services; • specialised financial messaging services; • credit rating services; • accounting, auditing, book-keeping, tax consulting, business and management consulting or public relations services; • construction, architectural and engineering ser - vices; • legal advisory services; • IT consultancy services; and • market research and public opinion polling ser - vices. 5.2 Goods Certain EU sanctions regimes include multiple import and export bans on goods to or from other countries, such as: • arms and dual-use items, as well as advanced goods and technologies; • oil and gas goods, technologies and products; • aviation and space goods and technologies; • iron and steel products; • luxury goods, gold, diamonds and jewellery; • goods that generate significant revenue for Russia; • goods that could specifically contribute to the enhancement of Russian industrial capacities; • crude oil and petroleum products; • liquified natural gas; and • cultural properties.
6. Civil Litigation and Arbitration 6.1 Force Majeure In some EU regulations, provisions exist that prohibit certain parties from making a claim where the per - formance of a contract has been affected, directly or indirectly, by the sanctions measures imposed in that Regulation. Examples of these are Article 11 of Regu - lation 833/2014 and Regulation 269/2014, as well as Article 8d of Regulation 765/2006 and Article 10 of Regulation 2022/263. Where these provisions apply, there is naturally no need to consider the application of force majeure as a claim would be struck out on the basis of these provisions. More generally on force majeure, there is no specific provision of Dutch law focused on the legal effect of sanctions on the performance of contractual obliga - tions. In general civil law, Article 6:75 of the Dutch Civil Code states that a party is not liable for a breach of contract if they are not at fault, personally or by virtue of the law. If sanctions make it impossible to perform the con - tract, then force majeure could theoretically be invoked under Dutch law. In practice, however, the courts are not typically willing to accept its invoca - tion. Judgments of the courts show that there is a high threshold for the invocation of force majeure if it is still somehow possible to fulfil obligations under the contract and the courts appear unwilling to make the creditor share in the risk that was in the sphere of the debtor. For example, the courts have not accept - ed the argument that a failure to receive money from Libya due to EU sanctions constitutes force majeure in relation to a business lease where that money was needed to pay the rent; and neither did the courts allow an entity that found itself unable to supply a spe - cific product to an Iranian entity due to US sanctions to invoke force majeure, as it argued that products could instead be procured from a different country that fell outside the scope of US sanctions. Neverthe - less, in one proceeding, the Amsterdam District Court did accept the invocation of the parties’ contractual force majeure clause where the specifically designed product could not be sent to the client due to sanc - tions-related export restrictions.
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