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 25 March 2020

The courts will remain closed after 6 April. However, in addition to the ‘urgent matters’, there will be court hearings in other cases too. For which type of cases this will apply is still unknown; the Judiciary will publish an additional list with priority cases in the coming week. The list will be extended on a regular basis. We'll keep providing you with further updates.


Closure of courthouses

On 15 March 2020, the Judiciary closed the courts, tribunals and special colleges as of Tuesday 17 March 2020 until at least Monday 6 April 2020, in order to prevent the spread of the coronavirus. These measures were taken following the emergency measures announced by the Dutch Government.

Only court hearings in urgent matters

As a result of the temporary closure of courts, all hearings are postponed, unless it concerns an ‘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 urgent:

  • Trade and cantonal affairs: summary proceedings (provisional injunctions), sub disputes and attachment proceedings (and possible subsequent lifting proceedings), but only if the case is extremely urgent.

  • 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.

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 non-urgent procedures

The Judiciary is currently looking into the possibilities of continuing all other written procedures (that are not urgent) to the extent possible, despite the current COVID-19 crisis. Wherever possible, court hearings will be held using video conferencing or telephone.

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 until 6 April only in writing. This is especially important for cantonal cases, since a defendant will therefore no longer be able to submit an oral defence.

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.

The courts are also taking into account that the existing measures will (have to) be extended in order to face the crisis: for instance, the courts are already actively seeking to hold hearings beyond 6 April.

Judgments and decisions can still be issued, sent and implemented. As already mentioned, decisions are issued in writing as far as possible, or with a limited delegation of parties involved. 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.

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 6 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 3 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: 23 March 2020