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Seminar: How will the new Dutch evidence rules affect international commercial dispute resolution?

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Amsterdam, 30 January 2025

On 29 January 2025, the Netherlands Commercial Court held a seminar titled: How will the new Dutch evidence rules affect international commercial dispute resolution?

About 60 persons attended the hybrid seminar, including online attendees from Indonesia, Italy, Germany, Romania, Poland and the United Kingdom.

Myths and realities of common and civil law (Professor Spamann)

Professor Spamann (Harvard Law School)

The keynote speech was given by Professor Spamann (Harvard Law School). For his bio and publications, see his website. Professor Spamann took us through some of the myths and realities of common and civil law. Here are some takeaways. 

There is a lot of discussion about the differences between common law and civil law systems. However, many of these distinctions do not exist. The continued emphasis on material differences often serves to reinforce the perceived superiority of common law - whether to protect it from external influences or to promote its adoption elsewhere. See “Civil V. Common Law: The Emperor Has No Clothes". Here are four of these myths:

  • First myth: “the common law is precedent, while the civil law is statute law". Most of the work of US and English judges is to apply statutes.
  • Second myth: “case law in the common law works simply by analogizing from facts, without considering abstract rules". Sometimes, the analogy may be quite dominant, but that is rare. In practice, common law is largely rule-based, much like in the Netherlands and other civil law countries. Predictability and consistency in the law require the application of abstract legal principles, making case law more structured than this myth suggests. See  the working paper “The Reasons Highest Courts Give"
  • Third myth: “common and civil law judges think differently, have a different culture and different ideas about the law". The most popular book on comparative law in the US, and often cited elsewhere too is “John Merryman, The Civil Law Tradition" (Stanford University Press). However, the author provides no evidence whatsoever of the difference way of thinking of civil and common law judges. In fact, an experiment Professor Spamann did involving judges from several common and civil law countries shows that common and civil law judges think alike.
  • Fourth myth: “the common law favours freedom of contract, while civil law interferes in the name of good faith". There have now been several in depth studies of this question comparing England to other European jurisdictions, and they have not confirmed this cliché. See for example this article (pdf, 374.9 KB).

Meaningful differences between common and civil law are: 1) the organization of their judiciary, and to a lesser extent: 2) civil procedure.

  • Organization: what is common to almost all common law jurisdictions is that they recruit their judges from seasoned practitioners rather than straight out of law school, as is done in almost all civil law jurisdictions. Except the Netherlands and the NCC, where only judges with experience outside of the judiciary are allowed to become a judge.
  • Civil procedure: United States (elected judges, civil juries, no cost awards and very extensive discovery) vs the Netherlands (appointed judges, no juries, moderate cost awards and limited discovery). There is movement in the NCC rules towards what is now a common law standard: cross-examination (please note: in the past, common law didn't have cross-examination either!).

Professor Spamann trusts the NCC will interpret its rules always with practicality in mind, and not with abstract - and ultimately not very meaningful - notions such as common law versus civil law.


The impact of the new Dutch evidence rules (Judge Jongeneel)

Next, Judge Jongeneel explored the possible impact of the new Dutch evidence rules on the resolution of large commercial cases. Here are some key observations:

  • The taking of preparatory evidence has been simplified: a party who wishes to get information from the counterparty, or hear witnesses or experts, can now do so prior to the initiating of the main proceedings in a single application.
  • The framework for allowing or denying such an application has been clarified: the application is granted, except where:
    • the information requested is not sufficiently specific
    • there is insufficient interest
    • the request is contrary to due process
    • there is abuse of right
    • there are other compelling reasons
  • These requirements are more or less the same as the previous Article 843a DCCP,. A request for access to the complete records of a company is insufficiently specific, but a request for all bank statements of a named bank account over a specific period or all correspondence exchanged with a specific party prior to taking a specific decision underlying the dispute fulfils the specifity requirement. In the pre-2025 rules an application could be denied if “a proper administration of justice is guaranteed even without the provision of the information". This has changed: access to information has now become a normal means to gather evidence, where previously it was “ultimum remedium".
  • The new legislation explicitly entitles a party to get access to information which is in the possession of a third party. However, where this third party is residing outside the Netherlands a Dutch court may not have jurisdiction to compel that party to provide the information. Article 195a indicates that the request against the third party is a separate procedure, which stands in the way of the “closely connected claims" requirement for jurisdiction under the Brussels 1bis Regulation.
  • Pre-judgement attachment of evidence is now codified in articles 205 and 206 DCCP.  The first step is to apply for the attachment. Second step is to get permission to access the attached evidence.
  • A new way of gathering information has been introduced: a bailiff can be instructed to go to a specific site (which includes places which are not accessible to the public), observe the relevant facts and record his observations in a record. This record has special probative value.
  • Articles 180 and 190 (new) allow for the court to make an audio or video recording of a witness hearing or of an expert examination and decide that this will replace the court's record of the hearing.

The Third Edition of the DCCP translation: approach, terminology and challenges (Judge Frakes and Alex Burrough)

Finally, Judge Frakes and translator Alex Burrough gave an interesting insight into the translation process and the team's methodology and deliberations. They spoke about the challenges they (and their fellow authors Judge Oranje, Registrar Visser and editor Stephen Machon) encountered in the creation of the English translation of the Dutch Code of Civil Procedure (DCCP).

  • Rather than just create a traditional translation, the project aimed to establish a foundation for talking about Dutch procedural law in English. The translator and editor worked to unlock the subject-matter expertise of the the NCC Judges and Registrar and capture and structure the output of the team's discussions.
  • The project leveraged various technologies – including AI and database software – to manage iterating updates to the source text and maintain consistency throughout the project.
  • The editorial debate was often about exploring the perspective of the foreign reader who would not be aware of the specific Dutch context. Choices were made to avoid common law terms and seek alignment with EU legal terminology as well as best practices in contemporary drafting.
  • The team grappled with various specific Dutch terms, ultimately opting for more literal or descriptive translations where this was more appropriate. Examples include “compelling evidence" as a translation of “dwingend bewijs" (rather than “prima facie evidence") or the use of “application to remove" for “wrakingsverzoek" (rather than “challenge").
  • Judge Frakes noted that English never uses “would" for reported speech. Instead, English always uses the present or past tense. He asked practitioners to contact their litigation support teams and incorporate this rule in their drafting guidance, so as to avoid confusing phrases in their submissions, in light of recent experience.
  • Alex Burrough concluded by emphasising the significance of the Third Edition's open-source nature and encouraged the litigation and arbitration community to engage in further dialogue and collaboration on legal translation in order to strengthen the Netherlands' position as a key hub for international commercial dispute resolution.

The updated translation and glossary haven been published on the NCC website (ncc.gov.nl under “Procedure/Rules"). They can be downloaded for free (see the direct links below).

Third Edition of the DCCP translation (pdf, 2.4 MB)

Glossary of Dutch Procedural Terminology (pdf, 347.4 KB)


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