Progressing the case

Typical procedural steps

What is the typical sequence of procedural steps in commercial litigation in this country?

Dutch civil proceedings will be initiated by sending the writ of summons of the claimant to the Dutch court (see question 17). After the writ of summons, the defendant will have the opportunity to submit a statement of defence. The statement of defence may include a counterclaim, which typically will be dealt with by the court at the same time as the original claim.

The court usually orders a personal appearance of the parties in court. In such personal appearance, the parties may provide further information (additional exhibits can be submitted in advance of the hearing) and the court may examine whether an amicable settlement can be reached. The court may also grant permission to hear witness and party-appointed experts. The court may render its judgment after the personal appearance of parties (in cases where a settlement has not been reached). In more complex matters, the court, of its own motion or on application by the parties, may allow parties to exchange further written briefs or order an additional appearance of the parties in court.

An appeal against the final judgment would need to be lodged within three months of the date of the final judgment. An interim judgment can only be appealed together with the final judgment, unless the court has indicated this in its interim judgment, or has granted leave afterwards.

Bringing in additional parties

Can additional parties be brought into a case after commencement?

There are two types of situations that lead to a joinder of parties. The first situation is that of an impleader of a third party by the defendant (see question 26). The second situation concerns a voluntary joinder or intervention. A third party can file a motion to request the court to allow the joinder or intervention before or on the day that the last written statement is due to be submitted. The third party will be permitted to join or intervene if it can demonstrate that it has a legitimate interest that might be affected by the decision in the main proceedings.

Consolidating proceedings

Can proceedings be consolidated or split?

Before raising any other defences, parties may request the court to refer a case to another court if an action is already pending before the other court and between the same parties in respect of the same subject matter, or if such action is closely connected to the action sought to be referred. The same applies for situations where two cases are pending before the same court.

Proceedings can also be split, although this does not occur often. The reasons for a split are usually of a technical judicial nature.

Court decision making

How does a court decide if the claims or allegations are proven? What are the elements required to find in favour, and what is the burden of proof?

The court may base its ruling only on facts that are made plausible in the course of the proceedings (ie, proven), that are undisputed by the parties, or that are generally known and require no evidence. Facts alleged by one party and not sufficiently disputed by the counterparty are regarded as established facts.

In general, the burden of proof lies with the party that invokes a certain legal consequence. This party must prove the requisite facts and circumstances unless a special rule or the principle of reasonableness and fairness require the burden of proof to be divided differently between parties.

The court has discretion in determining whether the evidence presented is sufficient. Parties are, in general, free to contractually agree as to what constitutes sufficient evidence.

How does a court decide what judgments, remedies and orders it will issue?

If the court decides that the claim or counterclaim is proven it can, in whole or in part, allow the claim. The court is bound to the wording of the claim of the plaintiff (and the counterclaim of the defendant). This means that the court is not allowed to order remedies that go further than the remedies sought by the applicant or applicants.

Evidence

How is witness, documentary and expert evidence dealt with?

Evidence may be presented through documents. Certain documents, such as notarial deeds, furnish conclusive evidence of their content. The court must, in principle, accept the contents of the act or deed as true. Parties have, however, the opportunity to present counter-evidence against exclusive evidence, unless such possibility is excluded by law.

The examination of witnesses may be ordered by the court at the court’s own initiative or at the request of one of the parties. In general, a court will allow a request for witness examination. Although witnesses are most commonly heard during legal proceedings, they may be heard in a preliminary hearing. This is a separate procedure that can be initiated before or during the main proceeding itself. This preliminary hearing can be used to assess whether a party has a strong case. It can also be used as a tactical safeguard against the loss of evidence in the course of proceedings (such as memory loss).

Witness statements prepared by the parties themselves are becoming more common, but tend not to have the same probative value as the records of a hearing in court where witnesses testify under oath.

In cases involving technical aspects, parties may submit reports by party-appointed experts. The court also has the opportunity to appoint an independent expert. In that case, parties have the opportunity to comment on the expert’s findings.

How does the court deal with large volumes of commercial or technical evidence?

Dutch courts usually have no problem with large volumes of technical evidence. It is up to the parties to ensure that their written submissions include clear and comprehensible information on the conclusions of the evidence and the location of the relevant sources in the case file.

Can a witness in your jurisdiction be compelled to give evidence in or to a foreign court? And can a court in your jurisdiction compel a foreign witness to give evidence?

Whether a witness in the Dutch jurisdiction can be compelled to give evidence in or to a foreign court depends on the relevant treaty the Netherlands has with the other country. Virtually all of the most important trade relations of the Netherlands are governed by Regulation (EC) No. 1206/2001 and the Hague Convention 1970.

Courts of EU member states (with the exception of Denmark) can request assistance directly from Dutch courts under Regulation (EC) No. 1206/2001. Requesting courts can ask the other member states’ courts to take evidence on their behalf or ask that they be permitted to take evidence themselves.

The Netherlands is also a party to the Hague Convention 1970. The Convention provides for several methods of obtaining evidence abroad, such as letters of request and the taking of evidence by diplomatic employees.

Vice versa, in Dutch proceedings, if a witness is domiciled in a foreign country, the court may request either the competent authority of that country or a Dutch consular to examine the witness. Alternative means of hearing witnesses may arise from relevant regulations and bilateral treaties with the other country.

How is witness and documentary evidence tested up to and during trial? Is cross-examination permitted?

Dutch proceedings have no discovery in the strict sense and parties are, in principle, free to determine which documents they want to use in support of their claims and defences. A party that bases its claim or defence on a particular document is obliged to give a copy thereof to the opposing party. Each party is entitled to demand inspection of the original document. If this is the case, the other party is obliged to deposit the document at the court’s registry.

Cross-examination is not part of the Dutch legal culture, and it is not practiced in state courts except in limited instances under the Hague Convention 1970. The hearing of witnesses in the Netherlands proceeds on the principle that the judge leads the hearing. In practice, however, the court nearly always grants the lawyers of parties the opportunity to ask questions (but this remains at the discretion of the judge).

Time frame

How long do the proceedings typically last, and in what circumstances can they be expedited?

The completion of proceedings in a court of first instance usually takes between six months and two years. In 2018, it took on average 37 weeks at first instance and 62 weeks in appeal to reach a decision in commercial proceedings.

The court determines the progress of the case. Parties have limited possibilities to expedite the case, other than making their objections known to, for instance, requests for postponement, witness hearings and the opportunity to have additional written or oral rounds.

Gaining an advantage

What other steps can a party take during proceedings to achieve tactical advantage in a case?

Parties can request the court to first render a partial judgment on, for instance, one or more specified claims. The courts, however, have full discretion in determining whether they render a partial or final judgment.

Impact of third-party funding

If third parties are able to fund the costs of the litigation and pay adverse costs, what impact can this have on the case?

As long as third-party litigation funders are not a party to the litigation, there is no formal impact on the case. Third-party litigation funders cannot be held liable for adverse costs and cannot be ordered to provide security for costs.

Impact of technology

What impact is technology having on complex commercial litigation in your jurisdiction?

Technology is becoming increasingly important in Dutch courtrooms. It is, for example, possible to use digital presentations during hearings to support a case. The Amsterdam Court of Appeal initiated a pilot in which certain specially selected hearings and judgments can be followed by the public via live streaming. We note that a pilot is currently ongoing in some courts in the Netherlands to implement digital proceedings in the Netherlands. Given the complexity of the problems experienced during the pilot, however, the Dutch Council for the Judiciary has announced that it will end this pilot, and at this moment will not seek to implement digital proceedings in civil cases.

Parallel proceedings

How are parallel proceedings dealt with? What steps can a party take to gain a tactical advantage in these circumstances, and may a party bring private prosecutions?

Related parallel proceedings, such as regulatory or criminal proceedings, have no formal impact on commercial litigation proceedings. However, parties can try to gain a tactical advantage by using information gathered via, for example, criminal proceedings in commercial litigation proceedings. A party may not bring private prosecutions in the Netherlands.