Anwar et al v. Fairfield Greenwich Limited et al

Filing 1180

DECLARATION of Professor Dr. Marielle Koppenol-Laforce in Opposition re: #1160 Memorandum of Law in Opposition,. Document filed by Harel Insurance Company Ltd., Harel Insurance Company, Ltd., Harel Investment and Financial Services Ltd., Pacific West Health Medical Center Inc. Employees Retirement Trust(On behalf of Itself), Pacific West Health Medical Center Inc. Employees Retirement Trust(on Behalf of All Others Similarly Situated), Pacific West Health Medical Center, Inc. Employee's Retirement Trust, Securities & Investment Company Bahrain, St. Stephen's School. (Attachments: #1 Exhibit A, #2 Exhibit B, #3 Exhibit C, #4 Exhibit D)(Barrett, David)

Exhibit A

Country Q&A The Netherlands

Dispute Resolution 2008/09 Volume 1

The Netherlands
Michel Deckers and Berth Brouwer, Boekel De Nerée

www.practicallaw.com/7-381-1946

Types of dispute resolution
1. Please give a brief overview of the main dispute resolution
methods used in your jurisdiction to settle large commercial
disputes, identifying any recent trends.

Large commercial disputes in The Netherlands are generally resolved through court litigation or arbitration.

Court litigation
The courts have wide experience in handling large and complex commercial disputes. Court proceedings are governed by
the Dutch Civil Code (DCC), the Dutch Code on Civil Procedure
(DCCP) and court regulations.

Arbitration

Court litigation - general
2. What limitation periods apply to bringing a claim and what
triggers a limitation period? Please briefly set out any different rules for particular areas of law relevant to large commercial disputes, for example contract, tort and land disputes.

The DCC sets out the law on limitation periods. A claim expires
after 20 years, unless the law prescribes otherwise (Article 3:306,
DCC). The right to claim the performance of a contractual obligation to give or to do something expires five years after the date the
cause of action arises (Article 3:307 − 310, DCC).

Contract
A claimant can file a claim under a contract, regardless of whether damage has occurred. The cause of action accrues on the date
of the breach of contract and the five-year limitation period (see
above) runs from this date.
Compensation. A claim for compensation or to pay a penalty must
be made within five years of the day following the day the claimant becomes aware of:
The damage (or of the fact that the claimant could demand
a penalty).



The identity of the person responsible.

In any event the claim must be made within 20 years after the
event which caused the damage.

Interruption
A limitation period can be interrupted by (Article 3:316, DCC):






Legal action (initiating proceedings).
Any act of judicial recourse instituted in a legally required
form or in the form agreed by the parties.
Written warnings (in certain circumstances).

3. Please give a brief overview of the structure of the court where
large commercial disputes are usually brought. Are certain
types of dispute allocated to particular divisions of this court
(for example, IP, competition or maritime disputes)?

Large commercial disputes are generally brought before the district
courts. Each division covers a variety of different areas of law.
In addition, there are a number of specialist courts for particular
types of dispute:








The Appeal Court of The Hague (Gerechtshof Den Haag) has
exclusive jurisdiction to hear actions concerning general
terms and conditions (Article 6:241, DCC).
Declaring a contract for collective compensation of damage
binding (Article 1013 lid 3, DCCP). The Amsterdam Court
of Appeal (Gerechtshof Amsterdam) has exclusive jurisdiction to hear requests for the court to declare a contract for
compensation for damage caused by an event (or similar
events) binding (7:907 lid 1, DCC).
If prescribed by law, the Enterprise Section of the Amsterdam Court of Appeal has jurisdiction over disputes and
research concerning enterprises. (For example, investigation
proceedings (Article 2:344 − 3: 359, DCC)).
The court in the district of Rotterdam is competent to hear appeals against decisions under the Competition Act (Article 93,1
Competition Act). This applies to appeals against a decision to
impose a fine. Appeal in cases concerning the Competition Act
is possible at the Trade and Industry Appeals Tribunal.

The answers to the following questions relate to procedures that
apply in The Netherlands.

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Country Q&A

Arbitration is also commonly used to resolve complex commercial
disputes. The DCCP provides for regulations on arbitration. Parties can also decide to apply regulations issued by permanent
arbitration institutes.



Country Q&A The Netherlands

Dispute Resolution 2008/09 Volume 1

4. Which types of lawyers have rights of audience to conduct
cases in courts where large commercial disputes are usually
brought and what requirements must they meet? Can foreign
lawyers conduct cases in these courts?

8. Does the court impose any rules on the parties in relation to preaction conduct? If yes, are there penalties for failing to comply?

The court does not impose any rules in relation to pre-action conduct.
Any lawyer registered at the bar is allowed to conduct cases throughout The Netherlands at the district and appeal courts, using local
counsel. In civil procedures only lawyers registered at the bar of a
district are allowed to conduct cases there. Lawyers of other districts
must use the services of local counsel in another district. Only lawyers registered in The Hague have the right to appeal to the Supreme
Court (of The Netherlands), the court of cassation.

9. Please briefly set out the main stages of typical court proceedings, including the time limits (if any) for each stage,
any penalties for non-compliance and the role of the courts in
progressing the case. In particular:


Fees and funding



5. What legal fee structures can be used? For example, hourly
rates, task-based billing, and conditional or contingency
fees? Are fees fixed by law?



How a claim is started.
How the defendant is given notice of the claim and when the
defence must be served.
Subsequent stages.

Starting proceedings
There is no scale fee for commercial litigation. Dutch lawyers
generally bill based on hourly rates in commercial litigation.
It is possible to enter into a conditional fee agreement, but not for
the entire amount of the fee.

Proceedings start in different ways, depending on the claim. Main
proceedings start with a writ of summons or an application.

Country Q&A

The court has discretion to order that costs are payable by one party
to another. It can also determine the amount of the costs and decide
when they are to be paid. This is only a fixed amount, and usually
does not represent the lawyer’s actual fee (see Question 21).

Summons proceedings. This (most common) procedure starts when
a writ of summons is served on the defendant. The defendant is
notified about the claim and when to appear in court. Article 111
DCCP lists the criteria the summons must fulfil, in particular, that
the summons must set out all arguments and evidence on which
the claimant intends to rely.

6. How is litigation usually funded? Can third parties fund it? Is
insurance available for litigation costs?

Service of the writ must be arranged by the claimant and is usually
executed by a bailiff. After the writ is served on the defendant, it
must be registered with the court.

Funding

After the first court date, the defendant is usually granted a period of
six weeks to file its defence. The statement of defence must set out
all arguments and evidence on which the defendant intends to rely.

Commercial litigation is usually funded by the litigating party,
often on the basis of advance payment and subsequent calculations.
There is no regulation to prohibit third parties from funding litigation.

Insurance
An insurance policy to cover legal fees is possible. Legal assistance insurance always covers legal costs and most policies allow
a lawyer chosen by the client.

Court proceedings
7. Are court proceedings confidential or public? If public, are
the proceedings or any information kept confidential in certain circumstances?

Court proceedings are public. However, the judge may decide in
some instances that the hearing, or part of the hearing, is confidential (Article 27, DCCP).

212

In principle, the written statements of the claimant and defendant
are followed up by an appearance in court.
In certain circumstances, parties are allowed to submit a reply
and rejoinder (for example, when the court does not give an order
to appear because the issue is complex). Either party can request
an oral hearing, but the court can deny this. It is quite common
that judgments given in civil cases are based solely on the written
statements submitted.
Application proceedings. Proceedings start by an application when
required by law. The request to start proceedings must be clearly
defined and arguments for it must be given. The request must be
presented at the court registry. The judge decides the date and
time for the request to be handled orally in court.
Interlocutory proceedings. Urgent situations where immediate provision is necessary can qualify for interlocutory proceedings. Interlocutory proceedings start when the claimant issues the defendant
a writ of summons. There is no exchange of written documents in
interlocutory proceedings. The defendant can put forward a defence at a hearing. Usually it takes about four to eight weeks for
the court to deliver its decision. The judge can impose an order

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Country Q&A The Netherlands

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to do something or to refrain from something, if necessary and
requested, subject to a penalty (an incentive to comply with the
order). A penalty cannot be imposed for monetary claims.

Notice to the defendant
In proceedings commenced by an application, the court notifies
the defendant. In proceedings commenced by a summons, the
claimant notifies the defendant.

Prior notice
In principle, interim injunctions cannot be obtained without prior
notice to the defendant. If the defendant fails to appear, the case
is still heard. Interim attachment orders (see below, Question 13)
can be obtained unilaterally.
Interim injunctions can be obtained on the same day through interlocutory proceedings only in extremely urgent cases.

Subsequent stages

Types of injunction

Further appeal is possible after a judgment in the first instance,
unless the law states otherwise.

There are three types of injunction:


Interim remedies
10. What actions can a party bring for a case to be dismissed
before a full trial (for example, summary judgment or for a
claim to be struck out)? On what grounds must such a claim
be brought? Please briefly outline the procedure that applies.

Procedural law determines whether or not a plaintiff is entitled to the
interim remedy requested in interlocutory proceedings. Preliminary
relief or injunction orders granted in interlocutory proceedings (before
the President of the District Court) must not be declaratory or constitutive judgments. The provisional judgment cannot prejudice the
claims that are at stake. In principle, interim remedies are provisional
(for example, contract termination is not possible). It is therefore impossible for a court to dismiss a case entirely prior to a full trial.









Are they available and on what grounds are they granted?



Can they be obtained without prior notice to the defendant
and on the same day in urgent cases?



Are mandatory interim injunctions to compel a party to do
something available in addition to prohibitory interim injunctions to stop a party from doing something?



Pending proceedings, both parties can request an interim injunction. This request has to be related to the principal claim in the
main proceedings.





Are they available and on what grounds must they be brought?
Can they be obtained without prior notice to the defendant
and on the same day in urgent cases?
Do the main proceedings have to be in the same jurisdiction?
Does attachment create any preferential right or lien in favour
of the claimant over the seized assets?
Is the claimant liable for damages suffered as a result of the
attachment?
Does the claimant have to provide security?

An attachment order (for example, a freezing order) is a frequently
used interim injunction. In general, attachment orders are easily
obtained. A party must bring forward a claim, which has to be
briefly substantiated and the items to be attached must be specified. Normally the main proceedings must be commenced within
two weeks after the attachment is made.
The President of the District Court must give leave for a pre-judgment attachment. There are rules for different kinds of pre-judgment attachments, such as:
Attachments on a claim for money or movable goods.



The requesting party must prove a pressing interest in the interim
injunction being granted. The judge may summon parties for a
hearing. The decision is a provisional judgment against which appeal is available.



Attachments on registered shares and securities.



Attachment by garnishment (where property owed to a
debtor and in the control of a third party is attached).

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Country Q&A

12. In relation to interim injunctions granted before a full trial:

Quia timet, ordering the defendant to act so as to prevent
harm occurring.

13. In relation to interim attachment orders to preserve assets
pending judgment or a final order (or equivalent):



Claimants with a non-EU residence can be asked to provide security for legal costs. Only a defendant who has no domicile or place
of business in The Netherlands or the EU can be asked for security
for costs.

Prohibitory, ordering the defendant to refrain from doing
something.

These injunctions can be final or interim and can be awarded conditionally or unconditionally. Usually conditions (such as a time
span) are attached to the injunction.



11. Can a defendant apply for an order for the claimant to provide
security for its costs? If yes, on what grounds?

Mandatory, ordering the defendant to do something.

Country Q&A The Netherlands

Dispute Resolution 2008/09 Volume 1



Attachment under the petitioner.

Constitutive judgment



Attachment on immovable goods.

A constitutive judgment changes or neutralises a situation, or
creates a new one. For example, a contract can be (partially)
terminated, amended or declared void.

Pre-judgment attachment against debtors with no known residence in The Netherlands is possible when the applicable rules
for the relevant pre-judgment attachment are followed. It is not
necessary to demonstrate a well-founded fear of disappearance or
embezzlement. When the claimant and the defendant reside outside the EU but the item to be attached is situated in The Netherlands, attachment is possible. Subsequently, the main case falls
within the jurisdiction of the Dutch court due to the attachment.

Prior notice
Attachment orders can be obtained without prior notice to the
defendant. They can be available on the same day as the application.

Jurisdiction
The main proceedings do not have to be in the jurisdiction where
the attachment orders are obtained. The location of the object to
be attached decides the jurisdiction in which the interim attachment order must be handled.

Preferential rights
An attachment order does not create any preferential rights or liens
for the claimant over the seized assets. It only secures the remedy.

Country Q&A

Liability
The claimant can be held liable for the damages caused by the attachment only when the attachment proves to be a wrongful act (for
example, with no legal basis or for too large an amount of money).

Condemnatory judgment
This judgment sentences a party. The judge can order or prohibit
anything within the limits set by law or contract. For instance,
the judge can order a party to compensate another (by paying an
amount of money, by repairing the damage or by authorising the
claimant to pay). Damages awarded are only compensatory, not
punitive (DCC).

Evidence
16. What documents must the parties disclose to the other parties and/or the court? Are there any detailed rules governing
this procedure?

There is no pre-trial disclosure. The claimant must state any evidence he has in support of his factual statements (including the
list of witnesses) in the writ of summons. In some cases witnesses can be examined provisionally.
The claimant must set out the available evidence in the writ of
summons. Failure to do so can lead to dismissal of the case. The
judge can order parties to explain certain positions or to submit
certain documents concerning the case (Article 22, DCCP). It is
also possible for parties involved to order inspection of, or identical copies of, certain documents concerning a legal relationship
in which the party or his predecessors are involved (Article 843a,
DCCP).

Security
Very rarely the claimant must provide security. A security interest
is created as the judgment debtor is unauthorised to transfer or
sell the attached item or claim.

17. Are any documents privileged (that is, they do not need to be
shown to the other party)? In particular:


14. Are any other interim remedies commonly available and obtained? If yes, please give brief details.



Would documents written by an in-house lawyer (local or
foreign) be privileged in any circumstances?
If privilege is not recognised, are there any other rules
allowing a party not to disclose a document (for example,
confidentiality)?

See Question 12.

Privileged documents

Final remedies
15. What remedies are available at the full trial stage (for example, damages and injunctions)? Are damages just compensatory or can they also be punitive?

Communications between lawyers are privileged and cannot be
introduced as evidence in proceedings when the lawyer is registered at the Bar Association. Documents of a foreign lawyer are
only confidential if so agreed by the parties.

Other non-disclosure situations
Declaratory judgment
In a declaratory judgment the court declares the rights, duties
and status of the parties, therefore enabling them to resolve any
uncertainties.

214

There are no rules forcing a party to disclose a document but the
judge may draw conclusions from the fact that documents are
not produced.

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Country Q&A The Netherlands

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18. Do witnesses of fact give oral evidence or do they just submit
written evidence? Is there a right to cross-examine witnesses
of fact?

can object to the court’s decision and can correct or complete his
grounds argued in the first instance.

Witnesses are heard only after the court orders a party to produce evidence in support of facts stated by that party which are
deemed crucial for deciding on the case. Witnesses are heard
before a delegated judge (rechter-commissaris). There is a right
to cross examine witnesses. In addition, parties can introduce
written statements of witnesses of fact as evidence.

The courts of appeal decide on judgments or orders of the district
courts in civil cases that are open to appeal within their jurisdiction. There are nineteen district courts divided into five areas of
courts of appeal. Every Dutch city is classed under a district.
Which court of appeal is competent is determined by the district
court that gave the judgment in the first instance.

Court

Grounds
19. In relation to third party experts:
How are they appointed (for example, are they appointed by
the court or by the parties)?



Contrary to an appeal in cassation (a procedure to review the
legality and regularity of the judgment under appeal), the ability
to reverse a judgment on appeal is not limited to certain legal
grounds.

Do they represent the interests of one party or provide independent advice to the court?



Procedure and timetable



Is there a right to cross-examine (or reply to) expert evidence?



Who pays the experts’ fees?

Appointment procedure

In civil law, proceedings usually start with a summons (summons
proceedings). In some cases the law prescribes a different procedure starting with an application (see Question 9). The key
elements in an appeal include:


Experts are appointed by the court on its own authority or at a party’s
request. The court consults both parties and appoints the expert
with the instruction to report to the court its findings or statement.

Role of experts



Right of reply
Parties have the right to cross-examine or reply to expert evidence.



Fees
Experts are entitled to wages and compensation, which must be
advanced by the claimant. After final judgment has been delivered, the party which has been found to be in the wrong is ordered to pay the expert’s fees (see Question 21).

Appeals
20. In relation to appeals of first instance judgments in large
commercial disputes:


To which courts can appeals be made?



What are the grounds for appeal?



Please briefly outline the typical procedure and timetable.

In general, any first instance judgment can be appealed. On appeal, the judgment is reassessed comprehensively. The appellant



Statement of grounds of appeal. The appellant is given a
term of six weeks (not counting postponements) to issue
a statement of grounds of appeal. The appellant must set
out the objections to the judgment in first instance, against
which decisions the objections are aimed and on which
grounds the objections are based. The appellant can expand
or change his original claim.
Statement of answer in appeal. After having received the
statement of grounds of appeal, the respondent has a
period of six weeks (not counting postponements) to issue a
statement of answer in appeal. The respondent can lodge a
cross-appeal in this statement. The appellant then has the
right to answer in a statement of answer in cross-appeal.
Oral hearing. After the statement of grounds of appeal and
answer in appeal have been exchanged, parties do not have
the right to reply or rejoinder. However, parties can ask for
an oral hearing. In most large commercial cases, oral hearings are scheduled.

21. Does the unsuccessful party have to pay the successful party’s costs and how does the court usually calculate any costs
award? What factors do the court consider when awarding
costs (for example, any pre-trial offers to settle)?

In summons proceedings, the unsuccessful party is given an order for costs, that is, the party must pay the other party’s legal
costs. In the few proceedings that start with an application, the
order for costs is at the discretion of the judge.

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Country Q&A

The expert must conduct his instructions impartially and to his
best knowledge.

Notice of appeal (summons). An appeal against a first instance
judgment must be lodged by summons within three months of
the day after the judgment. The summons needs to meet the
same requirements as in first instance proceedings (see Question 9) but need not contain the grounds for appeal.

Country Q&A The Netherlands

Dispute Resolution 2008/09 Volume 1

The costs award is determined by a fixed rate and consists of the
lawyer’s:


Fee (see Question 5).





Disbursements, including the:








court fee;
bailiff’s costs (where bailiff’s costs concern official acts
such as serving a summons they are calculated according to tariffs determined by governmental decree);
disbursed costs of witnesses or experts (who are reimbursed for their actual expenses).



Is only allowed if the agreement has “an international
character”.
Is only allowed if the law does not state otherwise. This
restriction covers Dutch intellectual property right (IPR)
priority rules and specific rules of conflict that (wholly or
partially) exclude a choice of law.
Can be restricted by foreign IPR priority rules.

The Netherlands is party to the Rome Convention on the law applicable to contractual obligations (1980/934/EEC) (Rome Convention). On the basis of the Rome Convention, parties are free to
choose the law governing a contract (subject to some restrictions
mentioned in the Rome Convention).

Extra-judicial costs can be claimed as financial loss, so far as they are
not made before proceedings commence (Article 6:96, DCC). Extrajudicial costs made in connection with legal proceedings, for example
the preparation of case documents, are part of the lawyer’s fee.

If a party breaks off contractual negotiations, it can be a wrongful
act in tort law. The choice of law is then governed by the Unlawful
Act (Conflict of Laws) Act (WCOD) 2001. The tort is then governed by the law of the agreement, had it been concluded, or by
the law of the country where negotiations were broken off.

22. Is interest awarded on costs? If yes, how is it calculated?

The Netherlands is party to the United Nations Convention on
Contracts for the International Sale of Goods (1980) (CISG). The
CISG can apply to international contracts of sale of movable property if the contract falls within the CISG’s scope, or if parties have
agreed that it applies.

Country Q&A

Statutory interest is due if payment of a sum is delayed (DCC). The
statutory interest is calculated on the basis of the sum over the
period that the debtor is in default. The statutory interest rate is
determined by governmental decree and is a compound interest.
In a trade agreement the contractual rate is applicable and due the
day following the agreed final payment date. If there is no agreed
final payment date, the DCC sets out the effective date of statutory
interest. If the contractual interest is more than the valid statutory
interest, contractual interest is due.
The court has no discretionary power to award interest. Parties must
therefore claim statutory or contractual interest on their costs.

Enforcement
23. What are the procedures to enforce a local judgment in the
local courts?

If the defendant does not comply voluntarily, the bailiff can enforce
the judgment at the claimant’s request. Enforcement is possible with
an enforceable order, being a bailiff’s copy of the judgment with the
header In naam der Koningin. This entitles the holder to enforcement
throughout The Netherlands. The bailiff’s copy of the judgment must
be served on the defendant before enforcement is possible.

25. Do local courts respect the choice of jurisdiction in a contract (that is, if the parties agree that claims will be brought
in the courts of a foreign jurisdiction)? Do local courts claim
jurisdiction over a dispute in some circumstances, despite
the choice of jurisdiction?

In principle, local courts respect the choice of jurisdiction in a
contract. However, choice of a foreign jurisdiction in employment
or consumer contracts is only respected when the agreement has
been made after the dispute has arisen, or the employee or consumer is the party invoking the choice of jurisdiction in the contract (Article 8, DCCP).
In a case that has no foreign elements whatsoever, it is possible for the Dutch courts to claim jurisdiction despite the parties’
choice of jurisdiction.
The Supreme Court has stipulated three restrictions on the choice
of jurisdiction. A choice of jurisdiction:


Cross-border litigation
24. Do local courts respect the choice of law in a contract (that is, if
the parties agree that the law of a foreign jurisdiction will govern
the contract)? If yes, are there any areas of law in your jurisdiction that apply to the contract despite the choice of law?

In principle, parties can choose the applicable law in a contract
and local courts respect this choice. The Supreme Court has,
however, stipulated three criteria for the choice of law. It:

216





Is not allowed if treaty or statutory provisions specifically
regulating the court’s jurisdiction do not allow the choice of
jurisdiction.
Is in general not allowed in cases that relate to public order
(for example, divorce).
That appoints a Dutch court needs a reasonable interest in
doing so (for example, neutrality, expertise in the subject
matter of the dispute, or legal certainty).

The Netherlands is party to Regulation (EC) No. 44/2001 on
jurisdiction and the recognition and enforcement of judgments
in civil and commercial matters (Brussels Regulation). If the

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Country Q&A The Netherlands

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matter falls within the scope of the Brussels Regulation, parties
can choose jurisdiction if one of the parties has residence or a
place of business in a member state. The freedom to choose a
jurisdiction by agreement is limited by the restrictions mentioned
in the Brussels Regulation.



Translation of documents is not required, but a translation
of the summary of the document is desirable. Methods of
service include:


A Dutch judge can be competent in interlocutory proceedings
even when a foreign court has jurisdiction on the substance of the
matter (Article 31, Brussels Regulation).
26. If a foreign party obtains permission from its local courts to
serve proceedings on a party in your jurisdiction, please briefly outline the procedure to effect service in your jurisdiction.
Is your jurisdiction party to any international agreements affecting this process?

The Netherlands is party to Regulation (EC) No. 1348/2000 on
the service in the member states of judicial and extra-judicial
documents in civil or commercial matters (Service Regulation)
and to The Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters
1965 (Hague Service Convention).
Service in The Netherlands of proceedings in EU member states
can be made as follows (Service Regulation):

The Netherlands allows an EU member state to serve judicial documents directly through its diplomatic or consular
agents.







The Netherlands allows a contracting state to serve judicial
documents directly through its diplomatic or consular
agents.

27. Please briefly outline the procedure to take evidence from a
witness in your jurisdiction for use in proceedings in another
jurisdiction. Is your jurisdiction party to an international convention on this issue?

Evidence can be taken from a witness for use in proceedings in
another jurisdiction based on Regulation (EC) No. 1206/2001
on co-operation between the courts of the member states in the
taking of evidence in civil or commercial matters or The Hague
Convention on the Taking Evidence Abroad in Civil or Commercial
Matters 1970 (Hague Evidence Convention), to which The Netherlands is a party.

direct service by post on people in The Netherlands
must be by registered letter;
documents sent by post to people residing in The
Netherlands must be drafted in or translated into a
language that the recipient understands.

28. What are the procedures to enforce a foreign judgment in the
local courts?

In proceedings outside the EU, documents can be served in contracting states of The Hague Service Convention as follows:
The contracting state addresses the central authority of The
Netherlands by written request (in English or French). The
central authority is the Public Prosecutor at the District
Court of The Hague and, in cases heard or to be heard by
the Supreme Court, it is the Supreme Court Procurator
General at The Hague.





Foreign judgments cannot be enforced in The Netherlands, unless
specifically provided for in a treaty to which The Netherlands is
a party. The Netherlands has entered into several such treaties,
including the Brussels Regulation and the EFTA Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial
Matters 1988 (Lugano Convention), on the basis of which judgments given in most European countries are generally enforceable
in The Netherlands once leave to do so has been obtained.

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Service by a particular method. The contracting state
can request a particular method of service.

To take evidence from a witness, a letter of request can be
submitted to the Public Prosecutor at the District Court in The
Hague. The Netherlands will not execute letters of request for the
purpose of obtaining pre-trial discovery of documents, unless the
documents are specified and believed to be in the possession of
the person who has to produce the documents.

The Netherlands accepts service of judicial documents by
post on the following terms:





Informal service. Informal delivery works in the same
way as formal service with regard to the authorities
involved. Depending on where the documents are to
be served, they are sometimes served via postal channels, by the police or by a member of the “documents
service brigade”.

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Country Q&A

Every member state has appointed a transmitting and
receiving agency (in The Netherlands, the bailiffs). The
transmitting agent of a member state must send the service
documents with a request for service to a Dutch bailiff
(in English or Dutch). The bailiff takes care of the service
of the document according to Dutch law, or in the form
requested by the transmitting agency (if compatible with
Dutch law). A list of Dutch bailiffs is available at http://
ec.europa.eu/justice_home/judicialatlascivil/html/ds_information_en.htm.





Formal service. If the documents are to be served in
the Court District of The Hague, the central authority
sends them to a randomly selected bailiff, with the
request to serve the documents on the person concerned. If the documents are to be served in another
court district, the central authority sends them to the
designated public prosecutor’s office and requests
service by a bailiff.

Country Q&A The Netherlands

Dispute Resolution 2008/09 Volume 1

The Netherlands has not entered into enforcement and recognition treaties with most countries outside of Europe. It follows
from Supreme Court case law that foreign judgments can be recognised by a Dutch court if the following three conditions are
met:






The foreign judgment is a result of proceedings compatible
with Dutch concepts of due process.
The judgment does not contravene public policy.

Alternative dispute resolution
29. What are the main alternative dispute resolution (ADR) methods used in your jurisdiction to settle large commercial disputes? Please briefly outline the procedures that are typically
followed, and any rules that apply.

Arbitration.
Binding decision.



Mediation.

Since 1 April 2005 the district and appeal courts can refer disputes to mediation. The courts only refer a case to mediation if
the case is suitable. Court referral does not create an obligation
for the parties to defer the proceedings to mediation. If mediation does not result in a solution, parties can again turn to the
competent court and continue proceedings.

Arbitration

Country Q&A

Mediation has become more popular as a form of ADR. Mediation
takes place under the direction of a professional mediator. The
mediator will not give a decision. It is up to the parties involved
to resolve their dispute. Mediation is voluntary and non-binding.
Mediation regulations (such as the Netherlands Mediation Institute Mediation Regulations) can apply by way of an agreement
reached at the beginning of mediation. If parties come to a solution it is set out in a settlement agreement. This agreement has
no enforceable power unless drawn up by a civil law notary.
30. Does ADR form part of court procedures or does it only apply
if the parties agree? Can courts compel the use of ADR?

The main ADR methods used in The Netherlands are:



Parties can agree that disputes that have arisen, or any future
contractual disputes, be submitted to resolution by one or more
third parties. The decision has the force of an agreement between
the parties. However, although the decision is binding, it is still
possible for the court to intervene in certain circumstances. A
binding decision has no enforceable power and parties must seek
enforcement through the court.

Mediation

The foreign court has found itself competent on grounds
which are internationally accepted, for example, a designated court (jurisdiction) chosen by the parties.



Binding decision

Through arbitration disputes are resolved by arbitrators on the
basis of an agreement between the parties involved. The DCCP
assumes contractual freedom, so the parties agree on the outline
of the procedure, often by referring to the arbitration rules of a
permanent arbitration tribunal such as the Netherlands Arbitration Institute (NAI) or to the DCCP. The DCCP contains provisions for arbitration in The Netherlands (Articles 1020 − 1073,
DCCP) and for arbitration outside The Netherlands (Articles 1074
− 1076, DCCP). Dutch arbitration law applies if the place of arbitration is in The Netherlands.

Proceedings
Proceedings commence when the claimant notifies the other
party that he will submit the dispute for a decision by the arbitrator. After this, the claimant files a statement of claim, which
is followed by a statement of reply by the defendant. In some
cases the arbitrator can allow for an extra exchange of written
documents after the filing of the statements. The arbitrator then
convenes a hearing of the parties. If necessary, the arbitrator can
order a local inspection. When the arbitrator believes that he has
enough information to come to a decision, an arbitral award will
be made.
An arbitral award is enforceable if a court (in interlocutory proceedings) grants leave to enforce the arbitral award. Legal remedies against arbitral awards are limited. Arbitral appeal is only
possible if the parties have contemplated it in their agreement.

218

31. Is ADR confidential?

Although there is no legal basis for confidentiality, arbitration, binding
decisions and mediation usually take place in a confidential setting.
Mediation regulations in particular contain a confidentiality
clause. This contractual clause only binds the parties governed
by these regulations. All information that comes up during mediation must remain confidential, unless the parties agree otherwise.
The confidentiality requirement does not apply to the outcome of
mediation (the settlement agreement), nor to information that the
parties possessed independently of the mediation process, unless
the parties have agreed otherwise.
32. How is evidence given in ADR? Can documents or admissions
made or produced in (or for the purposes of) the ADR later be
protected from disclosure by privilege?

In ADR the permissibility of evidence, division and assessment
of evidence, and disclosure of documents or admissions made
or produced in ADR are, in principle, determined by the parties.
Evidence is often submitted through documents, witnesses and
expert testimony. If the parties have not agreed on rules of evidence, the arbitrator can apply the statutory evidentiary rules.

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© This chapter was first published in the PLC Cross-border Dispute Resolution Handbook 2008/09 Volume 1 and is reproduced with the permission of the publisher,
Practical Law Company. For further information or to obtain copies please contact [e-mail], or visit www.practicallaw.com/disputehandbook.

Country Q&A The Netherlands

Dispute Resolution 2008/09 Volume 1

33. How are costs dealt with in ADR?

Costs may be split between the parties. Alternatively, costs may be
dealt with according to the specific regulations of the relevant ADR
institute chosen by the parties. These regulations often require the
claimant to make an advance payment in respect of costs.





34. Is ADR used more in certain industries? If yes, please give
examples.

Arbitration Board for the Building Industry in the Netherlands. This organisation resolves disputes in the building
industry by way of arbitration or binding advice (www.raadvanarbitrage.nl) (in Dutch with English regulations).
Architectural Arbitration Institute. This institute resolves
disputes between client and architect by way of arbitration or binding advice. Arbitration regulations and a list of
registered arbitrators can be found at www.arbitrageinstituutbouwkunst.org (only available in Dutch).

Mediation
ADR is increasingly common in disputes that require specific
knowledge of the matter. For example, arbitration is often used in
the building industry, the metal industry and trade industry.
Binding decisions are often used to settle disputes concerning consumer affairs. The consumer can approach the Foundation for Consumer Complaints Boards (SGC). The SGC has specific boards (such
as boards for disputes concerning cars, legal professions, travel,
post, banks and textiles). Consumers can still take their claim to
court, regardless of an agreement between the contracting parties.
Mediation is used by larger companies in labour disputes and
in cases in which it is considered vital or desirable to preserve
relationships for the long term.
35. Please give brief details of the main bodies that offer ADR
services in your jurisdiction.

Arbitration and binding decisions



Netherlands Mediation Institute (NMI). The NMI does not
offer mediation but is an umbrella organisation which provides mediation formats and regulations as well as certified
NMI mediators (see www.nmi-mediation.nl) (only in Dutch).
ACB Dispute Management for the business sector. ACB
is appointed by the employer’s organisation VNO-NCW as
a mediation organisation for companies. ACB can select
qualified mediators. Regulations and formats can be found
at www.acbmediation.nl (only in Dutch).

Reform
36. Please summarise any proposals for dispute resolution reform and state whether they are likely to come into force and,
if so, when.

A preliminary sketch for review of Book IV (arbitration) of the DCCP
was published in 2005. The suggestions to review the arbitration
law, amended as a result of the remarks made during a symposium,
were presented on 21 December 2006 to the Minister of Justice.
This initiative will probably be developed further in 2008.

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Country Q&A

Netherlands Arbitration Institute (NAI). The NAI offers the
business sector well regulated arbitration proceedings (arbitration and binding advice) (see www.nai-nl.org/english).



