This was an appeal in cassation from a judgment of the Antwerp Court of Appeal on 21 December 2020. The main issues were the legal consequences of the insolvency of OW Bunker (Netherlands) BV, and the interaction between, and the demarcation of, Regulation (EU) 1215/2012 of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the Brussels I bis Regulation), which does not apply to bankruptcy, compositions, and other similar procedures; and Regulation (EC) 1346/2000 of 29 May 2000 on insolvency proceedings (the Insolvency Regulation).

Held: The contested judgment should be annulled, in so far as it ruled on the international jurisdiction to hear the claim of the plaintiff against the first defendant, on the revocability of the bank guarantee, and on the costs.

The Court of Justice of the European Union (the CJEU) has ruled in settled case law that only claims arising directly from insolvency proceedings and proceedings closely related thereto fall outside the scope of the Brussels I bis Regulation. Therefore, only claims with those aforementioned characteristics fall within the scope of the Insolvency Regulation. According to the CJEU, the decisive criterion for determining where a claim falls is not the procedural context of that claim, but its legal basis. On that approach, it is necessary to determine whether the right or obligation on which the claim is based results from the general rules of civil and commercial law, or from specific, different rules for insolvency proceedings. According to the CJEU, the fact that a claim is brought by the liquidator appointed in those proceedings after the commencement of insolvency proceedings, and that liquidator acts in the interests of the creditors, does not essentially change the nature of that claim, which is independent of the insolvency proceedings and remains substantively subject to the Brussels I bis Regulation.

It follows from the foregoing analysis that the subject matter of the claim brought by the claimant Oilchart International NV (Oilchart) in Belgium against the first defendant and bankrupt debtor OW Bunker (Netherlands) BV (OW Bunker), after insolvency proceedings were commenced against the latter in the Netherlands, for payment of an invoice for the delivery of bunkers pursuant to a contract concluded before the opening of insolvency proceedings, is based on civil and commercial law rather than insolvency law. After all, as a creditor, the claimant could also institute the payment claim against the first defendant as the debtor itself outside the current insolvency proceedings. This claim, contrary to the finding of the Antwerp Court of Appeal, therefore falls within the scope of the Brussels I bis Regulation. International jurisdiction must be determined on the basis of the provisions of that Regulation.

The second ground of appeal challenges the rejection by the appeal Judges of the claimant's plea that the defendants' obligation arose from the signing of the bunker delivery documents by the authorised crew member of the MS Kasugta. According to the claimant, the appellate Judges thereby misconstrued the legal powers of representation of the master (arts 46.2 and 46.3 of the old Maritime Code [which gave domestic effect in Belgium to the MLM Convention 1926], which was applicable until its repeal in 2019 by the new Belgian Maritime Code), the evidential value of the signed delivery note, as well as art 1275 of the old Civil Code.

To the extent that this ground challenges the proposition that the master can only bind the shipowner pursuant to art 46 of the Maritime Code within the framework of the pre-existing rights and obligations of the parties deriving from agreements concluded in advance, even if it were well-founded, it could not lead to cassation, and is therefore inadmissible. It appears that the appellate Judges held that it was not the intention of the signatories of the delivery note (Hansa Tankers AS and Kasugta Shiffahrts GmbH, the third and fourth defendants) to deviate from the existing contractual framework and to accede to the contract concluded between the claimant and the first defendant, which is sufficient to support the appeal Judges' decision that the third and/or fourth defendants did not commit themselves directly to the claimant. The question of the extent of the master's legal power as an agent, and in particular whether the master can accept deviating contract conditions at the expense of the shipowner, pursuant to art 46 of the Maritime Code, is therefore irrelevant. In so far as the violation of art 46 of the Maritime Code is alleged, this ground is therefore inadmissible for lack of importance.

In its third appeal ground, the claimant argues that by granting the claim of the second defendant ING Bank NV, and by ruling that the claimant received a bank guarantee that was substituted for the conservatory seizure that the claimant had over the ships of the third and fourth defendants, the appeal Judges violated arts 1468 and 1469 of the old Judicial Code, and arts 1.1, 2, and 3.1 of the Arrest Convention 1952, as well as, to the extent relevant, art 5 of the Arrest Convention 1952, and arts 2.2.6.1 and 2.2.6.5 § 1 of the Belgian Maritime Code currently in force.

According to the claimant, to the extent that the appeal Judges based their decision on the consideration that '[the] calling on a bank guarantee on the basis of an enforcement against [the first defendant], without making any distinction as to the nature of this enforcement (outside the estate or from within the estate) [constitutes] a form of judicial enforcement that is incompatible with the Dutch Bankruptcy Act (Faillissementswet) applicable in this case', they violated art 33 of the Dutch Bankruptcy Act, since this article does not prevent a creditor from obtaining a judgment against their bankrupt debtor in order to invoke payment by a third party guarantor.

The call on a bank guarantee does not concern enforcement 'on the debtor's assets', but rather on the assets of a third party. As a result, art 33 of the Dutch Bankruptcy Act does not stand in the way of this. The appeal Judges who found that the call on a bank guarantee is a form of judicial enforcement incompatible with art 33 of the Dutch Bankruptcy Act, so that that call must be suspended once bankruptcy have commenced, did not justify their decision. This appeal ground is therefore well founded.

[For the final judgment of the Court of Cassation, see Oilchart International NV v OW Bunker (Netherlands) BV ECLI:BE:CASS:2022:ARR.20220428.1N.3.]