Litigation in the Netherlands
One of the smartest lawyers I know is Dutch, and so I associate the Netherlands with good lawyers. And, as a New Yorker, when I think of my city’s history of commerce, I think of the Dutch settlers who founded the city and the land they came from. And so I have been eager to learn more about litigation in the Netherlands, home of the largest seaport in Europe. Still, despite several visits to the country (visiting the Hotel Filosoof, made famous in the The Fault in Our Stars, and visiting friends at the University of Leiden), I never got the chance to speak with litigators there. Thankfully, Tanja Schasfoort, an attorney at Stek in Amsterdam, was gracious enough to speak with me about litigation in the Netherlands.
Why should you continue reading this post about litigation in the Netherlands?
Ever since you saw a major Dutch character in Austin Powers in Goldmember, you have been interested in learning more about the Netherlands.
You are planning a wild trip to Amsterdam and want to know something about the law ahead of time.
You want to learn about follow-on cartel cases in Europe, and about a rare system that abandoned electronic filing.
Tanja Schasfoort is an attorney at Stek in Amsterdam.
Can you tell me about the kinds of disputes you handle in your legal practice?
I mostly handle commercial contract disputes. I also handle tort cases and mergers and acquisition disputes. And I represent clients in cartel litigation and a lot of follow-on cartel cases.
I used to do a lot of court proceedings that follow arbitrations, such as seeking recognition of an arbitration award in court, but I don’t handle those cases so much anymore. Lately, I also do a lot of quite some cases involving the seizure of evidence. That’s a growing practice in the Netherlands.
What is a follow-on cartel case?
It’s a typical European Union thing. If the European Commission finds that a party infringed EU competition law, European law says that everyone who suffered damages as a result thereof is entitled to compensation.
These so called "follow-on" litigations cases seek damages. For example, I am working on a case involving a cartel related to trucks. Many people or companies who bought or leased trucks are suing truck manufacturers because of inflated prices. These cases are often funded by litigation funders and claims are brought on the basis of the assignment model or as a class action and involve complex issues such as discussions about jurisdiction, applicable law, and passing-on defenses.
As another example, we are working on a big damages action in the Netherlands against Google on behalf of publishers that have suffered harm as a result of Google’s anti-competitive conduct in the market for digital advertisement. The French competition authority has already ruled that the Google advertising bidding process violated its law and currently the European Competition Commission is investigating the company's behavior. We are working with Geradin Partners, that represented complainants in the French Competition Authority case, with the support of independent economics consultancy Charles River Associates.
What are seizure of evidence cases?
These are ex parte proceedings to seize documents items to be preserved as evidence for civil proceedings. A court may grant leave to allow a third party to seize evidence. This means that the evidence is preserved, but that does not mean that that party actually gets to see the evidence.
For that, the applicant must start separate substantive proceedings (usually within two weeks after the attachments are levied) and asks the court to request from another party a copy, extract or inspection of certain documents.
A few years ago, Dutch judges were reluctant to grant leave to leave attachments to seize evidence and this was only possible in intellectual property cases. But now, judges issue them more in other kinds of cases.
For example, in one case, two former employees of a client took documents from the employer with them while they were still employed and used the documents to set up their own practice. We found out about their theft of the documents because of an email they sent to the wrong email address (of the employer). We asked the court to grant leave to levy attachments for the purpose of preserving evidence. The court granted our request after which we sent a bailiff and an IT specialist to the defendants’ homes to make copies of everything so they cannot be deleted or lost
These cases are helpful, also because the Dutch evidence system is different from the common law system. We don’t have broad discovery, so I like to use the seizure of evidence to pressure other parties. Even if we don’t ultimately get access to documents, the procedure puts pressure on the other party since they know the contents of the copies the bailiff made, and if they know that something is not completely right in those files, they may settle since there is the fear we may get them.
But here there are no fishing expeditions. You need to be specific about what you need and why you need it; you can't just see a whole email box without a good reason.
What type of clients do you generally represent in disputes?
My clients are medium and large sized companies. The litigation practice at my firm does not specialize in a particular industry, but the firm generally does a lot of energy law. It represents clients in mergers and acquisitions and finance transactions for green energy projects, like wind parks.
Besides Microsoft Office, what software do you use in your practice?
We use software called DMS for document management. We use Legal Sense for time entries. And we use a program called Numbers to register employees’ holiday days, salary, and similar information.
What books and websites do you use for legal research?
We use Legal Intelligence and Kluwer Arbitration.
Image credit: https://commons.wikimedia.org/wiki/File:Supreme_Court_of_the_Netherlands,_The_Hague_06.jpg
Do you electronically file pleadings with the court? Or must you send paper copies of them to the courthouse?
A few years ago, the Netherlands had a big project to digitize the court system. It was a disaster, cost millions of euros, and it didn’t work at all. So we went back to the old fashioned way of filing most documents in paper with the court.
Until February 2022, we still faxed documents to court. But now we can send some procedural documents to court digitally, though some things we still need to file physically. Zivver is the online service we use to send documents electronically to Dutch courts, although in some of the district courts, you can use email.
Does the Netherlands have specialized courts that only hear commercial cases?
There is a new court that is part of the Amsterdam Court: the Netherlands Commercial Court (NCC District Court and NCC Court of Appeal). It opened on January 1, 2019, and it hears complex business disputes completely in the English language and its judgments are in English.
A matter may be brought before the NCC if (i) the Amsterdam District Court or the Amsterdam Court of Appeal has jurisdiction, (ii) the parties have expressly agreed in writing that proceedings will be in English before the NCC, (iii) the action is a civil or commercial matter within the parties’ autonomy and (iv) the matter concerns an international dispute.
Who decides the facts in a commercial case? Is it a judge or a jury?
A judge.
Generally speaking, how many pages are the complaints or initial pleadings you see in your work?
For a writ of summons, up to 50 pages would be normal. But it depends, because late last year, I received a statement of defense in a big case. It was 950 pages, not including the exhibits. I had never seen anything like that before and it was very extreme for a normal case.
Courts are really fed up with lengthy pleadings, and the courts of appeal implemented a rule recently that some filings could be no longer than 25 pages. But then several lawyers complained. The Supreme Court ultimately ruled that the courts of appeal can impose page limits, so long as there are exceptions.
Generally speaking, how long does it take for a case to go from complaint to judgment?
About one to one and a half years.
Generally speaking, how is evidence exchanged between the parties before trial?
In a pending proceeding, you can request that the court order another party to disclose certain documents. This requires a party to explain what specific documents they need and why they are needed.
Do you get to interview the opposing witnesses before the trial?
You can do a preliminary witness examination with the court's permission. Usually this takes place in a courtroom, but you can do it by videoconference. The judge asks the questions and there is no verbatim report. Instead, a clerk writes a summary report that the witness signs and, if the witness says something very important, counsel can ask the clerk to include it in the summary.
If you win, does the other side reimburse your attorneys’ fees?
Not really. The general rule is that if a party wins, the losing party has to pay fees, but usually only a few thousand euros pursuant to a liquidated scheme based on the number of filings and hearings. In a medium sized case, this may be 10,000-20,000 euros, so not the real fees the prevailing party likely incurred.
Are Dutch courts open to the public? Can ordinary people watch a commercial trial?
Yes.
Do you believe that Dutch courts have a particular strength for resolving commercial disputes?
The Dutch court system is good at handling international cases and has lots of experience with cases involving multiple parties and foreign parties and in applying foreign law to disputes.
For example, we represent a party in a cartel follow-on dispute governed by Brazilian law and the Dutch court is able to render a decision based on Brazilian law. Each side has an expert on Brazilian law and the court could even get its own expert, but the court usually picks what it wants from the two parties' experts.
The Dutch courts are also generally efficient and very pragmatic.
How about a weakness?
At the moment we really need more judges. Our judges are really busy, which makes it difficult to schedule a hearing. The process takes more time than it should.
Also the technology system of the court is not very good.
How often do you go to the courthouse?
Not too often, since the written phase is the biggest part of a case usually. I may go to court once or twice for a case before any appeals. There usually are no witness examinations, so I may only go every 2-3 months, and only a few times per year.
When you are there, do you need to wear a special robe or wig?
We do wear a special robe, which is called a toga.