COVID-19: Consequences for dispute resolution in the Netherlands

By Evelyn Tjon-En-Fa, Laura Scheffer

03-2020

The Novel Coronavirus (COVID-19) pandemic has far-reaching consequences for the accessibility of justice and alternative forms of dispute resolution in the Netherlands. In this article, we will tell you what measures have been taken up until this point and what the consequences are for both current and new cases.


UPDATE 28 April 2020

In our experience, most courthouses have started to hold hearings via video link (via Skype for Business or Zoom). Pleadings must be submitted in advance and the emphasis is on answering the judges' questions. Third parties can attend a hearing on request, at which the disclosure of the identity of the visitor and the use of a video link is mandatory. Anonymous access via an audio connection is therefore not possible.

From 11 May 2020, physical hearings will begin to resume on a limited scale, now that the courthouses have made several initial adjustments. The Judiciary has indicated that criminal cases, juvenile (criminal) cases and family cases have priority. In the first week of May, rechtspraak.nl will clarify which cases have priority in each jurisdiction. However, the basic principle remains that court cases will, as far as possible, be handled by telephone or with a video link or will be dealt with in writing. This means working from home will still be possible. 

The number of hearings that can ultimately take place in the physical presence of the parties depends on the extent to which a court building can be made COVID-19 resistant. However, court buildings will have longer opening hours in order to avoid peak loads. In addition, the public will not be allowed to attend physical hearings and, in principle, there will only be room for a maximum of three journalists.

It is worth mentioning that in two judgments dated 7 and 8 April 2020, the Amsterdam subdistrict court ruled that the current corona crisis is no reason to prevent a bailiff from handing over a writ. At the proposal of Minister Dekker for Legal Protection, an emergency law is now being drafted regarding article 47 of the Code of Civil Procedure. This will determine that bailiffs – provided the RIVM guidelines prescribe that a distance must be maintained - may hand over their documents by putting them in another’s letterbox, without prejudice to the legal validity of the service.

In housing (rent) cases, the courts are currently applying the policy that evacuations are principally only granted if there is serious inconvenience and not, for example, on the grounds of rent defaults. 


Closure of courthouses

On 15 March 2020, the Judiciary closed the courts, tribunals and special colleges as of Tuesday 17 March 2020, in order to prevent the spread of the coronavirus. These measures were taken following the emergency measures announced by the Dutch Government. As a result of an extension of the current emergency measures (until 28 April 2020 for the time being), the Judiciary has adopted a general rule for the processing of cases. Specific rules have been developed for a number of jurisdictions; please see the temporary regime per jurisdiction on the themepage corona.

The starting point remains: only court hearings in urgent matters

As a result of the limited opening of courts, all hearings are postponed, unless it concerns an ‘extremely urgent matter’. These are cases in which a court hearing cannot be postponed because it concerns the fundamental rights of suspects or those seeking judicial assistance. This measure applies to pending cases and new cases.

The Courts have classified the following cases as extremely urgent:

  • Trade and cantonal affairs: summary proceedings (provisional injunctions), sub disputes and attachment proceedings (and possible subsequent lifting proceedings) and a request for renewal of the rent agreement
  • Insolvency cases: bankruptcy hearings, requests relating to moratorium, interim provisions (including decisions of the supervisory judge) and cases relating to remuneration of trustees/administrators.
  • Administrative law: all provisional provisions with an extreme urgency, as well as immigration detainment cases.
  • Civil appeal: specific summary appeal proceedings in trade and bankruptcy cases.
  • Specific measures have also been taken in criminal law, family law and immigration law, which can be found on the website of the Judiciary.

In principle, therefore, these hearings will continue as usual, but it does not include an oral hearing with the physical presence of the parties. Wherever possible, court hearings will be held using video conferencing or telephone.

The court in question, however, will determine if the case is extremely urgent. Consequently, authorised representatives and lawyers will have to demonstrate why the hearing - and thus the decision - in a particular case cannot be postponed.

Consequences for other procedures

As of Tuesday 7 April, other cases will also be continued by video conferencing or telephone, as far as the capacity of the courts allows. The order of precedence is as follows; firstly the extremely urgent cases will be processed, followed by the ‘normal’ urgent cases and then, where possible, all other cases will be processed. In the coming period, these other civil law cases will be processed if no agreement can be reached on written settlement and the court rules that the oral hearing cannot be postponed after 28 April. The following also applies here: in principle, any hearing will take place at a distance.

The public gallery of the Courts will in any case be closed until further notice and decisions will be rendered in writing as much as possible (which was, of course, the case for most decisions anyway).

The calendar sessions (rolzittingen) will take place, but in any case until 28 April only in writing. This is especially important for cantonal cases, since a defendant will therefore no longer be able to submit an oral defense.

As the written calendar sessions take place, new cases can continue to be filed and registered. Procedural documents must be submitted in the usual manner (and within the set deadlines). Bailiffs will continue the serving of documents as usual. As of 9 April it will also be possible to make use of the so-called ‘Safe Mailing’ service of the Judiciary. In this way, (procedural) documents and messages can be exchanged by e-mail.

Judgments and decisions can still be issued, sent and implemented. As already mentioned, decisions are issued in writing as far as possible and no audience is permitted. However, a maximum of three journalists can be given permission to be present. Decisions in cases that are of great public interest will be assessed as to whether live streaming is an option.

Furthermore, whenever possible, judgments will be published on www.rechtspraak.nl.

Specifically, in commercial matters (most commercial disputes between companies, not being cantonal cases), new cases in which the defendant does not appoint a lawyer may be awarded in absentia on a regular basis and a judgment may be issued. If no written documents are submitted at the calendar hearing, the cases will be held for the time limits resulting from the standard procedural rules. If a written statement is received, the proceedings will continue as usual. Therefore, there are no changes in this respect.

For summary proceedings, it has been announced that the normal hearing has been temporarily replaced by a schedule for communication by e-mail. If there are any questions regarding this communication, the judge will organise a so-called ‘conference call’. If the judge considers that an oral hearing is necessary, such a hearing will likely be scheduled once the national measures have been lifted, unless the judge decides that there is an urgent need to schedule a hearing at an earlier stage.

Intellectual property cases will in general not qualify as an ‘urgent matter’ in which hearings need to proceed. The accelerated regime in patent cases at The Hague District Court will remain unaffected, as the exchange and time limits for the exchange and submission of written documents remain unchanged.

For insolvency cases, the following cases are concerned to be urgent: WSNP admission requests, hearings in WSNP cases, coercive agreements, (negative) clean slate hearings, requests for interim termination, substantive verification meetings and requests for conversion.

For housing (rent) cases, no eviction will be ordered until 1 June 2020, unless there are facts that make the case extremely urgent, such as criminal activities and serious nuisance. A request to extend a rental agreement on the basis of the Temporary Act on the Extension of Temporary Rental Agreements is regarded as an urgent matter.

As far as the Central Desks are concerned, it should be noted that these are all closed in all courts and that all procedural steps and activities should be carried out as much as possible per mail/fax, telephone and/or e-mail.

In practice, virtually all procedural steps (including the submission of documents) will be able to proceed as usual. It is important that lawyers and authorised representatives stay in contact with their regular chain partners (such as couriers and bailiffs) in order to find suitable solutions to limit disruptions in proceedings as much as possible. In specific cases, our lawyers and authorised representatives will, of course, always discuss the necessary steps and consequences with all parties involved, including the counterparty.

Mediation

Ongoing mediation cases through courts' mediation offices will be suspended. No new mediation cases will be started for the time being. However, it is possible to apply by e-mail for certain mediation cases in advance. Contact can still be made by telephone, but actual mediation meetings can only be scheduled as soon as the emergency measures have expired.

Arbitration

The Netherlands Arbitration Institute (NAI) has decided - in accordance with the guidelines of the National Institute for Public Health and the Environment (RIVM) and the central government - to remain operational and work remotely at least until 28 April in order to – as the Institute states itself - guarantee the continuity of its services. Sessions and meetings at the NAI have also been rescheduled or postponed and a strong preference is given to purely electronic or telephone communication. If it is necessary for parties to receive judgments by mail, they should inform the NAI in a timely manner.

At the Council of Arbitration for the Construction Sector, all oral proceedings in the period from 17 March to 30 April will be postponed for now to a later date. Written proceedings will continue as usual and new cases can be submitted regularly. Just as with the courts, summary proceedings will only take place in the event of extreme urgency and, where possible, the hearing will be held digitally.

The same operational principles apply to the international arbitration bodies. Important arbitration hearings and conferences are postponed or cancelled, but remote service is still possible.

Conclusion

A lot of disputes are not (yet) brought before a court – parties often try to find an amicable solution first. Especially in disputes or conflicts related to the COVID-19 crisis, parties are asked for their flexibility and - sometimes - to temporarily set legal aspects aside, and an increased appeal to the moral side. The limited accessibility of justice, also in situations where a decision in summary proceedings is normally made within a few weeks, forces parties and their legal advisors to be creative. This may lead to commercial relationships that may continue for many more years.

This article should not be used as legal or practical advice. The COVID-19 situation changes from day to day and requires tailor-made solutions. We aim to provide regularly updated content during this uncertain period on our dedicated COVID-19 In Focus page. For any specific situations, please feel free to contact us, so that we can provide you with our further advice.

Last Reviewed: 6 April 2020