Monthly Archives: May 2012

Pre-trail discovery in the Netherlands

Disclosure in Dutch Court Procedures

Pre-trial discovery works different in the Netherlands then e.g. the US of UK. It is possible to hear witnesses, obtain proof from other parties, get experts appointed by the Dutch Court, et cetera. A Dutch attorney can organize the pre-trial discovery in the Netherlands.

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Getting Witnesses to Court in the Netherlands

Article 162 of The Dutch Code of Civil Proceedings gives the possibility of the provisional examination (preliminary hearing) of witnesses. This means that the Dutch attorney of any party can call witnesses to the court to be heard, before it decides to commence legal proceedings against an other party. By doing so, this party will have the opportunity to estimate – on the basis of the statements of the witnesses – its chances in legal proceedings, and to decide whether or not to commence legal proceedings. Within the frame of these preliminary hearings, the court can be requested to order the other party to have its accounts, records and documents inspected by an independent external expert (e.g. a certified auditor or accountant).

Appointing Dutch Court Expert

The Court can also appoint an expert do initiate pre-trial expertise.  A Dutch attorney can file a request for this appointment of an expert. To obtain appointment of the expert by the Court it is not necessary that  a claim is filed or a procedure is already pending. It may be important to obtain expert evidence. Dutch Courts tend to follow the report of expert appointed by teh Court.

Dutch Court Order for Investigation

The Dutch Code of Civil Proceedings does not know proceedings to get pre-trial inspection of accounts, records and documents (electronic records and documents included). According to the law, such an inspection can only take place during legal proceedings. However, if evidence (documents, records, bank statements, e-mails et cetera) is kept by a party and the plaintiff has a legitimate interest to obtain this evidence then  Article 843a of the Dutch Code of Civil Proceedings allows summary proceedings to obtain a court order for obtaining (copies of) this evidence.

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International jurisdiction Dutch Court over civil and commercial claims

International jurisdiction Netherlands Court over civil and commercial matters (principal rule)

A Dutch attorney can file claims with the Dutch Courts based on property law, the law of obligations, the law of contracts, the law of tort or on intellectual property rights. The claim has to be brought before a Dutch court by filing a Writ of Summons at the Registry of the court.  In the  Writ of Summons the defendant is invited to appear in the Dutch Court on a specific day.

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The Dutch court has jurisdiction if the defendant has his domicile or habitual residence in the Netherlands (the ‘forum rei’ rule). The domicile and habitual residence of commercial partnerships and legal persons are the Municipality that is appointed as seat of the commercial partnership or legal person and the place where its head office is actually located, respectively.

International jurisdiction Dutch Court over civil and commercial matters (alternative rules)

The Duch Code of Civil Procedure offers alternative criteria for jurisdiction with regard to legal proceedings initiated by a Writ of Summons, regardless of the domicile or habitual residence of the defendant. These criteria independently create  jurisdiction with the Dutch court has jurisdiction. These rules determine legal claim is linked in such a way to the territory of the Netherlands that jurisdiction of the Dutch court is justified.

Filing a Claim with Dutch Court

The Dutch attorney can also file a claim with the Court in the Netherlands in matters concerning:

  • contractual obligations, that have been performed or must be performed in the Netherlands;
  • an individual employment agreement or an agency agreement if the work is or used to be performed in The Netherlands;
  • an individual employment contract, if the work is performed temporarily in The Netherlands, concerning rights of action with regard to conditions of employment and labour conditions referred to in Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services.
  • consumer contracs involving a consumer who has his domicile or habitual residence in the Netherlands and an opposite party who pursues commercial activities or his trade of profession (also) in the Netherlands;
  • obligations arisen from a tortious act, if the event that has caused the damage has taken place or may take place in the Netherlands;
  • real property rights in, as well as lease and farm lease agreements to immovable things located in the Netherlands (however, not over claims derived from a sale agreement with regard to immovable property in the Netherlands);
  • estates of a deceased natural person, if the last domicile or last habitual residence of the deceased was located in the Netherlands;
  • the validity, nullity or dissolution of commercial partnerships and legal persons established in the Netherlands;
  • legal claims and issues related to a bankruptcy, suspension of payment under a moratorium or the Debt Repayment Scheme for Natural Persons that has been proclaimed or granted in the Netherlands.

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A word on general conditions under Dutch law

A Dutch lawyer can inform you on  specific rules for general terms and conditions used by companies. Some rules are inspired by European regulations.The Dutch Civil Code contains explicit mandatory provisions governing the use of standardized terms.

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Standard Clauses in Dutch Contracts

Whether or not clauses contained in standardized terms are enforceable under Dutch law, depends on the nature of the party against whom the terms may be enforced, more specifically whether that party is a large entrepreneur, a small entrepreneur or a consumer.

Protection against unfair contract terms

If at the time of the conclusion of the contract, the other party is a legal entity that has published its annual accounts or has fifty or more employees, it qualifies as a “large entrepreneur.” The provisions relating to standardized terms do not protect such “large entrepreneur.” In case of a large entrepreneur as a contractual counterpart, the answer to the question whether contract clauses (either individually made or contained in standardized terms) are enforceable, depends on the test of reasonableness and fairness.

Void conditions in Dutch agreements

That’s a vague criterion, but it has overriding effect in Dutch law. With respect to other entrepreneurs, a standardized term may be voidable in view of the nature of the remaining contents of the contract, the way in which the standardized terms came into existence, the mutually known interests of the parties and the other circumstances of the case, it is unreasonably onerous for the other party, or if the enforcing party did not offer to the other party a reasonable possibility to be informed of the standardized terms.These two criteria resemble the foreign (i.e. non-Dutch) concept of unconscionability.

Black-listed clauses in Dutch Civil Code

For consumers, the Dutch Civil Code contains a so-called “grey list ” and a “black list” of provisions that are deemed unreasonably onerous when contained in contracts. The statutory provisions containing the black list and grey list can also effect non-consumer contracts, which is why I decided to briefly mention this in this e-mail.

A party who supplies good or services to a consumer may “get stuck” between the consumer and a preceding party, with whom he contracted in respect of the same goods or services, in that a clause in the consumer contract is subject to avoidance based on the black list or the grey list, whereas a similar clause in the contract with the preceding party is not.

In such a case the clause in the contract with the preceding party can also be avoided, if relying on that clause would be unreasonable because of the close connection with a clause contained in standardized terms that has been avoided.

Of relevance may also be article 6:247.2 of the Dutch Civil Code, which regulates that if both parties are entrepreneurs, but not both established in The Netherlands, then the provisions concerning standardized terms (say: the grey and black lists) are not applicable. This is basic knowlegde for a Dutch solicitor so don’t hesitate to mail me any questions you may have.

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Pre-judgment attachment under Dutch law

It is possible to attach assets of a debtor in the Netherlands before the Court procedure started. A Dutch attorney can prepare the attachment to seize assets available in Holland

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Attachment of Dutch Assets at short notice

This pre-judgment attachment (conservatoir beslag) is also effective and good pressure on the other party. Most often the attachment is used for recovery to pay claim and obtain to get security for this claim. All assets of the debtor are subject to attachment. Apart from the attachment for the collection of receivables (verhaalsbeslag) is it also possible to attach specific goods for the purpose of surrender (beslag tot afgifte) or attachment delivery of goods (beslag tot levering).It is also possible to make a third party attachment.

Garnishment of Dutch Bank Account

The funds in the bank of the debtor may be attached. So, goods held by a third party but to be delivered by the debtor may be attached. The third party, who is the target of the attachment, must declare within 4 weeks what he owes to the debtor.
To enforce intellectual property rights, it is also possible in case of alleged infringement of intellectual property rights, the attached assets for the purpose for preserving evidence (bewijsbeslag).

How to obtain a leaf for attachment in the Netherlands?

A Dutch lawyer can file the request to the competent court to obtain leaf for the attachment. The judge decided on the petition ex parte. Usually the defendant will not be heard by the judge. Only if the applicant request to sequestrate goods of the debtor, the judge will allow the debtor to respond to the filed request.

If the leaf for arrest for attachment is granted, usually is done under the condition the within 14 days from the date of the attachment the main proceedings of the underline claim are instituted.

Creating jurisdiction of the Dutch Court through attachment

In case the debtor is not domiciled in the Netherlands and the claimant can not obtain judgment in another country, which is enforceable in the Netherlands, then the attachment gives jurisdiction to the Dutch Court. For example: the Dutch Court can hear a case against a syrian oil company if an oil tanker of this company is attached in the Rotterdam harbor. The main proceedings are not attended then preliminary relieve proceedings may also qualify the main proceedings. This will be arbitration.

Legal Action to lift seized assets

The debtor who believes that the attachment is unjustified may start preliminary relief proceedings at short notice.

In all cases the attachment should be lifted if the debtor provides sufficient security in the form of a bank guarantee to a claim of the plaintive. The attachment will be lifted if the claim is without merit and if the attachment is considered this appropriate. An attachment will also be lifted if the formal requirements are not followed. However it is sufficient for the claimant to proof that the claim is not without merit and if a beginning of evidence is substantiated to the Court, it is very hard for the defendant to prevent or oppose the attachment. The pre-judgment attachment in the Netherlands is therefore very liberal compared to other countries. This attachment is used very often used by claimants.

Unlawful Garnishment under Dutch Law

If the claim of the claimant is not granted in the main proceedings, then the attachment was unlawful. The claimant is liable for all damages,  suffered by the party who was effected by the attachment. If the claim is only partially denied, then there is no liability for the claimant. If the claim is granted in the main proceedings, then pre-judgment of the attachment will be automatically be converted to an executory attachment. With the actual judgment of the claimant can then start execution of the arrested assets.

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Directors liability in the Netherlands

Directors of companies in the Netherlands can be held liable both in civil law and criminal law. Dutch law does not have the concept of disqualification.

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Civil liability pf Director Dutch Company

Each director has a duty towards the company to properly perform the duties assigned to him (section 2:9 Civil Code). That’s the general rule. There is only a failure if it can be established that the director has failed in the performance which could be reasonably expected under the specific circumstances. Failure of a director does not automatically lead to liability. Liability is only incurred in the case of serious culpability (ernstige verwijtbaarheid). Whether serious culpability is involved has to be determined on a case by case basis whereby all relevant circumstances have to be taken into account.

Joint Liability under Dutch Law

All directors are, in principle, jointly and severally liable for inlawful acts. An individual director may be discharged if he can prove that (i) he cannot be held responsible for the failure and (ii) he has not been – actively – negligent in preventing the consequences thereof.

Tort action againt board of Dutch Company

A director may be held liable in tort (onrechtmatige daad – section 6:162 Civil Code)) by a creditor on the grounds that he entered into a transaction on behalf of the legal entity, while at a time he knew or should have reasonably known that the company would not beable to meet the obligations, and would not have sufficient assets from which the debt could be recovered.

Exculpation of Dutch managing Director

It is not sufficient that there was a more than negligible risk that the legal entity would not be able to meet its obligations. The director should have anticipated that the risk would actually materialize. If the managing director has not taken an irresponsible risk when he entered into the transaction, the managing director cannot be held liable if in retrospect it appears that the company nevertheless does not fulfill its obligations and it was foreseeable from the start that the legal entity would not provide for recourse.

A managing director can also be held liable in tort if he has allowed or effectuated that the legal entity does not meet its obligations under an earlier commitment and consequently causes damage to the other party.

Director’s Liability in bankrupcy

Such claim in tort can also be brought by the receiver in bankruptcy, on behalf of the creditors of the company (even though the bankrupt company would not have had a claim against the director).

If the legal entity does not provide sufficient resources to pay all creditors in the case of bankruptcy of the legal entity, the directors shall be jointly and severally liable for the deficit in the bankruptcy if (a) it is apparent that the management has not discharged its duties properly and (b) it is likely that the bankruptcy was caused by the mismanagement of the board. This is referred to as manifestly improper performance of duties (kennelijk onbehoorlijke taakvervulling) (section 2:138/248 Civil Code).

Mismanagement in Dutch Company

Only manifestly improper performance of duties during the three years preceding the bankruptcy is taken into account. Manifestly improper performance of duties means that no reasonably acting entrepreneur would have acted – in equivalent circumstances and with the knowledge the director had (or should have had) at the time – similarly.

If improper performance of duties by the board is established, all managing directors are, in principle, jointly and severally liable. If mismanagement is established, the directors are jointly and severally liable for the entire deficit of the bankrupt estate (although the court can mitigate damages).

Faults in bookkeeping

If the management has failed to keep its books properly (section 2:10 Civil Code) or has failed to publish the annual accounts with the Chamber of Commerce (section 2:394 Civil Code), improper performance is (irrefutably) deemed to have occurred and improper performance is (refutably) presumed to have been an important cause of the bankruptcy. An individual director can exculpate himself if he can prove that other factors were an important cause of the bankruptcy. However, the burden of proof lies with the director.

Similar liability rules apply for supervising directors and factual directors.

Criminal liability of Netherlands Comapny

Under particular circumstances, (factual) directors can be prosecuted (section 51 Dutch Criminal Code). For example, section 1 of the Economic Offences Act lists a number of obligations under Corporate Law, the non-compliance of which constitutes a criminal offence.

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