The court procedure in The Netherlands is designed to settle disputes in the most economic way possible, in terms of time and costs. The claimant has the lead in the proceedings and in their assessment of the facts, the courts are not allowed to go beyond the boundaries fixed by the claim and the defendant’s answer. The court has powers to determine the timing of the proceedings and may encourage the parties to settle, but the court can never force a party into a settlement, nor punish a party for not wanting to consider settlement. Disclosure or discovery can only be achieved at the express request of one of the parties and its extent is limited in order to avoid so called ‘fishing expeditions’ which the courts will not allow. In general, Dutch courts take a pragmatic view and are used to dealing with international disputes. Although Dutch is the official court language, the courts usually have no problem in dealing with contracts and evidence in English, French or German.
Three types of proceedings in the courts may be distinguished:
1. Main proceedings (bodemprocedure): In cases where the defendant appears in court, judgment on the merits may be obtained within 12 to 18 months. Default judgments (the defendant does not appear in court) can be obtained within 2 months. Interim injunctions can be granted during full proceedings, if the court is not yet ready to render final judgment after the oral pleadings have taken place, for instance because additional evidence is needed. No discovery or other pre-trial proceedings are prescribed. However, parties may ask for pre-trial sessions (hearing of witnesses or examination of places) both during and before the proceedings in order to obtain evidence and assess their own position. Appeal proceedings may take between 12 and 24 months. Proceedings before the Supreme Court typically take about 16 months.
2. Summary proceedings (kort geding): In urgent matters, parties may ask for interim injunctions. Injunctions are usually imposed under severe money penalties. In practice, courts readily accept that a matter is urgent. The variety of injunctions a party can ask for is extremely wide and includes payment orders, orders that a party take or refrain from taking certain action, orders to disclose documents and orders to transfer property. In practice, especially in intellectual property cases, the summary proceedings will effectively determine the dispute (for example, in an intellectual property case, the grant of an injunction to prevent further infringements). Although the courts do not decide the merits in summary proceedings, they do take the merits very much into account. The balance of convenience plays almost no role. The likelihood of winning the main proceedings after having lost the summary proceedings is usually very low. In summary proceedings, judgment may typically be obtained within 3 to 6 weeks, but in exceptional matters of great urgency it may be within 24 hours.
3. Measures to conserve rights (conservatoire maatregelen): A party may seize another party’s assets, including bank accounts, at practically any time. Generally, the courts authorise such seizures without first hearing the other party and an order may be made very quickly (within hours) but at the risk of the claimant. The defendant can ask for the order to be set aside as well as for damages if the seizure was unlawful. However, so long as the claimant has a good case, seizing the other party’s assets can be an inexpensive and effective way to encourage the other party to pay or to perform so as to avoid further costly proceedings.
All claims are commenced in one of the 19 district courts (rechtbanken) in The Netherlands. Five courts of appeal (gerechtshoven) hear appeals against judgments of the district courts, both on points of fact and of law. In patent cases, a specialised chamber of the district court and court of appeal in The Hague have exclusive jurisdiction.
The ‘High Council of The Netherlands’ (Hoge Raad der Nederlanden) is the Supreme Court of the Kingdom. This court hears appeals against judgments of the courts in Holland, the Dutch Antilles and Aruba, but only on points of law (cassation appeal). Dutch lawyers may act in all courts in The Netherlands except in the Supreme Court. The Supreme Court only examines appeals filed by lawyers who are admitted to the bar of The Hague.
If the parties agree, they are free to choose the court in which to commence the proceedings.
Parties can seek the assistance of the court on a whole variety of issues before any trial. This is typically done through summary proceedings (kort geding) and measures to conserve one’s rights (conservatoire maatregelen). Please see above.
Whilst the Dutch courts have limited case management powers, they are designed to progress cases quickly and efficiently. The opportunities for a party to delay a case by ignoring the procedural rules are limited. However, if the parties agree the facts and the procedural steps to be taken, then the courts generally will not interfere. The parties are therefore encouraged to agree the scope of the dispute at an early stage in order to keep procedural costs to a minimum.
In commercial disputes, practically all decisions are open for appeal, unless the parties agreed otherwise. The court of appeal can consider the case afresh. Appeals to the Supreme Court are on points of law only. No leave is required for either sort of appeal.
3. Emergency Relief
Court orders or injunctions can be obtained at short notice requiring a party to do, or refrain from doing, a particular act either before proceedings are commenced or during the litigation. Please see "summary proceedings" and "measures to conserve rights" above. Dutch courts will accept jurisdiction to make orders with regard to assets located in The Netherlands.
In Dutch proceedings, the parties have no obligation to disclose to each other the relevant documents in their possession or control. Although there is an obligation on the claimant to mention documents and witnesses that can prove that the defendant’s arguments are invalid, there is no real penalty if this is not done. This obligation is limited to arguments raised by the defendant before proceedings are commenced. The general position is that the parties are not obliged to mention facts or evidence if it is not in their interest to do so. However, a party may be ordered by the courts to disclose documents because, for example, the other party requires sight of those documents and is not able to obtain them in other ways.
The general rule is that most types of evidence are admissible before a Dutch court. There are certain exceptions. Firstly, lawyers (advocaten) are not allowed to use communications between themselves in court as evidence, unless the other party’s lawyer agrees with this. (This is a bar association rule and not a rule of law, so the courts impose no sanctions if this rule is ignored.) Secondly, under a new Dutch procedural law, the courts may order that any information or evidence, whether in whole or in part, is to be treated as confidential. The courts may also stipulate that certain parts of their decisions are not to be made public. This means that parties with disputes regarding issues of a confidential nature (commercial terms, patents, etc.) are less reluctant to bring their disputes before the courts. It also means that evidence from other jurisdictions, such as the USA, can be used without breaching a foreign protective order.
6. Enforcement of Judgments
A Dutch court judgment can be registered and enforced within the Dutch Antilles, Aruba, the European Union and EEA countries as if it were a judgment of the courts of those countries.
In addition, there are reciprocal arrangements between The Netherlands and some other jurisdictions around the world, which allow for the registration and enforcement of a Dutch judgment in those jurisdictions.
A judgment in The Netherlands can be enforced quickly and at a relatively low cost. Dutch bailiffs are independent professionals who act on the instructions of lawyers without intervention of the courts or any other public authorities.
The cost of pursuing a claim in The Netherlands depends on the value of the claim in dispute and the complexity of the case.
The general rule is that a successful party will be able to recover only a few thousand Euros of its costs from the unsuccessful party. In complicated cases, the successful party will be able to recover less. The conduct of the parties is not taken into account, except in very extreme cases of ‘abuse of procedural rights’.
Only in exceptional cases will the courts order that a party bringing a claim give "security for costs", in order to ensure that the claimant will be able to meet any cost order eventually made against it.
8. Arbitration and ADR
The Netherlands has a long tradition in international arbitrations, mainly due to its longstanding international commercial culture. Arbitral awards have the same legal force as court judgments once they have been approved by the courts. Such approval is rarely refused and can only be denied on very limited grounds. There are very limited grounds on which a party may appeal an arbitral award.
ADR (Alternative Dispute Resolution)
The traditional form of negotiating through the parties’ lawyers is still the most usual way of settling disputes. However, mediation and other forms of ADR are used in The Netherlands. One successful form of ADR is the mini trial or so called "binding advice" (bindende adviezen). This is a procedure whereby the parties agree to be bound by an expert opinion. It is commonly used in well established business relationships as a way of resolving minor disputes.
Written by Wouter Pors in our office in The Hague.