I INTRODUCTION TO DISPUTE RESOLUTION FRAMEWORK
The Dutch judiciary comprises 11 district courts, four courts of appeal, and the Supreme Court. District courts have jurisdiction over most civil matters in first instance. The cantonal division of the district courts handles employment, tenant, consumer and small claims. Parties can appeal from most district court decisions to the courts of appeal, which can review the case de novo, subject only to the grounds of appeal. The Supreme Court rules on appeals against decisions of courts of appeal, but does not assess facts. The Supreme Court also has special competence to decide on lower courts’ preliminary questions of law.
Bigger cases are usually handled by district court panels of three judges, while a single judge typically resides over smaller cases and cases in summary proceedings. The Dutch judiciary consists mostly of trained judges and, to some extent, former practitioners. It is renowned for its competence, integrity, independence, and impartiality. The Dutch court system does not feature any juries, nor does it provide for any discovery or disclosure phase prior to initiation of the proceedings on the merits.
Specialised divisions of the courts deal with specific types of disputes. Most corporate disputes are handled by the Enterprise Chamber of the Amsterdam court of appeal (e.g., inquiry proceedings and squeeze-out proceedings). The district and appeal courts in The Hague have exclusive competence to deal with certain patent and trademark cases. The Amsterdam court of appeal has exclusive jurisdiction to declare class action settlements binding. A recent legislative proposal introduces the Netherlands Commercial Court (NCC), a specialised chamber of the Amsterdam District Court and Amsterdam Court of Appeal that deals with international disputes. The NCC allows parties to conduct proceedings entirely in English and in an efficient manner and state-of-the-art court, thus bolstering the status of the Netherlands as a venue for resolving international disputes, even where such disputes are between non-Dutch parties and are not governed by Dutch law.
The Netherlands has a long and stable tradition as a venue for international arbitration – for both commercial arbitration and investor-state and state-to-state arbitration (The Hague, with its Permanent Court of Arbitration, often being a venue of choice). Legislation and case law repeatedly reiterate the policy of supporting arbitration. The arbitration act, which is part of the Code of Civil Procedure (CCP), is modelled on the UNCITRAL model law and has been recently updated.
Mediation is frequently used to resolve disputes as well, although not as frequently as in the United States or United Kingdom (although recent initiatives seek to broaden the interest in mediation as a method of commercial dispute resolution). In keeping with its voluntary nature, there are very few mandatory rules that apply to mediations conducted in the Netherlands.
II THE YEAR IN REVIEW
The Netherlands seeks to become a more attractive place for resolving international disputes. The bill, which introduces the Netherlands Commercial Court, has been presented to parliament and is expected to be approved in the first half of 2018. Practical preparations have been made to allow a quick start of the NCC in mid-2018. The NCC aims to become a court of preference for international commercial matters. The government recognises that in the globalised economy, English has become the primary business language, and that there is an increasing demand for dispute resolution in English also in jurisdictions that do not have English as primary language. This is particularly true for the Netherlands, which has one of the most open economies in the world – with many multinational companies having substantial business presence in the Netherlands and a growing expat community working there. The ability to conduct proceedings in English will add to the Netherlands’ favourable international business climate. The NCC also seeks to compete with London, noting that litigation costs are significantly higher in London, which, moreover, may become a less attractive venue post-Brexit. The government also expects that the NCC is a viable alternative for parties who find international arbitration too expensive. It is expected that proceedings before the NCC are cost-effective, since court costs are fixed at a relatively low amount and Dutch courts generally do not award actual costs against the losing party (but rather use low standardised fixed-cost awards). In addition, Dutch civil proceedings are generally less costly because they do not feature a burdensome discovery or disclosure phase that typically makes proceedings in certain common law jurisdictions more expensive.
The jurisdiction of the NCC will be based on a forum choice by the parties to a contract or by parties selecting the court on an ad hoc basis (which also may be for alleged tort claims). The Netherlands Commercial Court and Netherlands Commercial Court of Appeal will be special chambers of the Amsterdam district court and the Amsterdam court of appeal. The rules of the Dutch Code of Civil Procedure will also apply to NCC proceedings. The NCC has its own procedural court regulations, which are tailored to the complex, international disputes it aims to resolve. The NCC envisages active case management by the court, entirely digital submissions, use of a state-of-the-art hearing facility, and judges selected specifically for their fluency in English and competence in complex international commercial cases.
Class actions are another area of Dutch law drawing international attention. Particularly since global resolution of securities class actions through US courts was seriously curtailed by the Morrison judgment in 2000,2 non-US investors that suffered losses from purchases on non-US securities exchanges sought out different venues to settle class actions with foreign issuers. The Netherlands proved a suitable jurisdiction. Ever since, various global class action settlements have been declared binding by the Amsterdam court of appeal, and, also recently, litigation funders and US plaintiff firms have set up several vehicles that seek to bring global litigation to the Dutch jurisdiction (e.g., regarding Dieselgate and BP Deepwater Horizon) with an aim to ultimately reach binding class actions settlements (see Section III.iii). In 2017, one of the biggest class action settlements in Europe (over €1.2 billion) was considered for approval by the Amsterdam court of appeal. Ageas, the successor of the Belgian/Dutch financial institution Fortis, which was bailed out during the financial crisis, had reached a settlement with various claim organisations that represented Fortis shareholders. The settlement provided for a higher compensation per share for ‘active’ claimants (those who were associated with certain claim organisations) than for ‘non-active’ claimants. In an interim decision of 16 June 2017, and upon complaints raised by certain ‘non-active’ shareholders, the Amsterdam Court of Appeal decided not to approve the settlement.3 The court reasoned that insufficient grounds had been given to substantiate why such a distinction between active and non-active claimants was reasonable. Subsequently, the parties to the settlement agreement renegotiated the terms thereof and submitted an amended settlement agreement for approval to the Amsterdam Court of Appeal on 12 December 2017.4
The Enterprise Chamber of the Amsterdam court of appeal is a renowned business court dealing with major corporate battles. Last year, the Enterprise Chamber rendered an important decision in the AkzoNobel hostile takeover battle. AkzoNobel had received unsolicited takeover proposals from PPG Industries, which AkzoNobel’s management and supervisory boards rejected. Activist shareholder Elliott filed a petition with the Enterprise Chamber in Amsterdam requesting an inquiry into AkzoNobel’s conduct and policies, and certain interim measures, including an extraordinary general meeting to vote on the dismissal of the chairman of AkzoNobel’s supervisory board. Ruling on the application for interim measures, the Enterprise Chamber denied the requests by Elliott in its judgment of 29 May 2017.5 It held that it is the exclusive authority of the boards of a Dutch company to determine the response to an unsolicited takeover proposal. The boards do not have a duty to consult with shareholders prior to responding to an unsolicited takeover proposal. In such a situation, the boards need to carefully take into account the interests of all stakeholders of the company and they remain accountable to shareholders on the position taken in response to an unsolicited takeover proposal. In assessing an unsolicited takeover proposal, the board must be guided by the interests of the company and its stakeholders – which is a broader group than merely shareholders – with a view to long-term value creation. The logical consequence is that a target company can reasonably reject a takeover proposal, even if the majority of shareholders would intend to accept it.
III COURT PROCEDURE
i Overview of court procedure
The Code of Civil Procedure (CCP) contains most rules of civil procedure, though several important procedural rules have been developed or further defined in case law. The courts’ procedural regulations set out rules and guidelines of a more practical nature (e.g., rules for filing submissions, deadlines and extensions). Rules applicable to court of appeal proceedings are fairly similar to those for district court proceedings.
A Dutch court may only base its decision on facts or rights that are undisputed by the parties, or which are proven during the proceedings. Statements made by a party that are not sufficiently disputed by the other party will be considered as undisputed. In general, the burden of proof will be on the party that invokes the legal consequences of the facts or rights alleged by it. Evidence may be presented by all possible means such as deeds, documents, judgments, witnesses, expert reports or a court inspection of certain premises. The court is generally free in its assessment of the evidence introduced by the parties.
Historically, civil proceedings in the Netherlands have been focused on documentary evidence, rather than on presentation of evidence during a hearing and witness examinations before the court. Today, there is still no discovery or disclosure phase at the onset of litigation; however, there is an increased emphasis on early case management by the court. In addition, the use of the motion to seize evidence and the motion for disclosure has proliferated – with courts progressively supporting a wider use of those.
Moreover, pretrial witness and expert hearings have always been important tools for evidence gathering. A party may request that the court holds a preliminary witness hearing concerning certain matters if proceedings on the merits have not yet been initiated, or if such proceedings are already pending. The reason for a preliminary witness hearing may be (1) to preserve the testimony of a witness who might be unavailable later, (2) to preserve the quality of a testimony (memories tend to fade) or (3) to assess the chances of success of the proceedings. The court may refuse to allow a preliminary witness hearing in the event that it holds that the request for such hearing or report is a misuse of procedural rights. This ground is rather narrow. Generally, a person who has been called as a witness must testify. The court itself will examine the witnesses. Parties as well as counsel may pose questions after the court has examined the witnesses, but there is no system of cross-examination. The procedure for expert hearings is similar.
At the request of the government, an expert committee has made suggestions for modernisation of the rules of evidence, proposing inter alia a stronger focus of evidence gathering at the beginning of litigation. It is not expected that those suggestions will become law any time soon, if at all.
The judiciary is in the midst of a modernisation project. It is focused on two main themes: first, an increased focus on active case management and, second, on making proceedings fully digital. The new rules streamline and shorten procedures, and courts will exercise more control and will have the power to deviate from the basic procedural structure if the nature or complexity of the case gives cause for this. The digitalisation of the courts will be on a phased basis. Currently, proceedings for the Supreme Court and two district courts use the new procedural framework. At the end of 2018 all district courts will follow suit and, subsequently, the courts of appeal as well.
ii Procedures and time frames
Under Dutch law, the standard procedure is initiated by a writ of summons. Under the new rules, litigation will start with an originating document that is served with a notice to appear – but the contents, albeit standardised, will be similar to the current writ of summons. After service of the writ, it is sent to the court. The writ contains information on the parties, the claim and its legal grounds, evidence supporting the legal grounds and offer of witness evidence, the basis for the court’s jurisdiction, and known defences against the claim and rebuttal of those. Subsequently, the court sets a time limit for the defendant to submit a statement of defence, including all defences, motions and counterclaims (usually six weeks). After the statement of defence (or after the statement of defence in counterclaim, if a counterclaim is filed), the court usually orders a personal appearance of the parties – to provide information or to attempt to reach a settlement. The court may also provide the parties, upon request, with an opportunity to plead the case during such a hearing. Timing of the hearing primarily depends on how busy the court docket is. It usually takes at least several months after the last submission for a case on the merits, but hearing dates can be set more efficiently by reserving dates up front (using active early case management). In a standard procedure the hearing is followed by a final judgement or an interim judgment. An interim judgment may deal with a part of the claim or instruct a party to prove certain points and produce certain evidence. It generally takes between three and six months for the final judgement to be rendered, even though most courts strive to render judgment faster. The new legislation that is part of the aforementioned modernisation project should shorten the current time frame (it aims for judgment to be rendered in six weeks).
The completion of proceedings on the merits in a district court usually takes a year, but may take substantially longer depending on the procedural complexities, such as the number of submissions, motions and extensions of time limits. The losing party will be ordered to reimburse the winning party for its court costs and legal fees. The reimbursement is a fixed amount, however, dependent only on the interest at stake and the complexity of the litigation. The fixed amount is usually a small percentage of the actual costs incurred by the winning party.
A party can lodge an appeal against a final judgment within three months after the date of the challenged judgment (four weeks, if against a judgment in summary proceedings). The court of appeal may assess the case based on both the facts and the applicable law. An appeal in cassation can be brought for the Supreme Court within three months after the judgment in appeal. A Supreme Court appeal may only be based on misapplication of the law or non-compliance with essential procedural requirements. An appeal suspends the enforceability of the challenged judgment, unless the judgment was declared provisionally enforceable.
Certain motions are expressly mentioned in the CCP, such as the motion to dismiss for lack of jurisdiction, the motion for the production of evidence, the motion for security and the motion to summon a third party to appear in the proceedings (e.g., for indemnification). Parties may also lodge motions that have no specific basis in the CCP. There are no general motions to dismiss a case for lack of stating sufficient facts to support the legal grounds, or for not passing the statute of limitations, or on any summary basis. However, the court may decide on its own initiative or on the application of a party to deal with certain issues first, in the interests of procedural efficiency (e.g., it deals first with the defence that the claim is time-barred).
Motions can be made by parties in the writ of summons or in a written statement, depending on the stage of the proceedings. Motions usually suspend the case on the merits. However, the court may determine otherwise – for instance, when it deems that a motion is apparently used to unduly delay the proceedings on the merits.
Urgent or interim relief
A plaintiff may apply to the summary proceedings section of the district court to obtain provisional measures against another party. The plaintiff will have to demonstrate an urgent interest in obtaining such provisional measure. Designated procedural rules ensure an expeditious trial. Summary proceedings may be initiated regardless of whether proceedings on the merits have been or will be opened. The court hearing the main proceedings is not prejudiced by the summary judgment. Summary proceedings are initiated by service of a writ of summons. A hearing, normally supported by written briefs, will take place within a few days or a few weeks after service of the writ. The decision of the court is normally rendered one to two weeks after the hearing. As a result, the entire proceedings normally take only a few weeks. In exceptional circumstances, a decision may be obtained within a few days or even within a few hours.
Summary proceedings can be used for a wide variety of provisional measures. They are often used to order a party to act or stop acting in a certain way (usually reinforced by penalties). For example, to obtain an order forcing the defendant to resume performance of a continuing contractual obligation, or to obtain an injunction against infringement on an intellectual property right. Summary proceedings may also be used to obtain payment, when the obligation to pay is not in dispute (but the debtor simply cannot pay) or there is no reasonable defence against the claim for payment (there should be a high probability that the claim would be awarded in a case on the merits). Summary proceedings are popular and widely used, as they enable a party to quickly get resolution of the dispute. All injunctions are normally immediately enforceable notwithstanding appeal.
Conservatory or pre-judgment attachments
An effective means to secure and preserve assets until a final resolution of a dispute is the pre-judgment attachment. It prevents the debtor from frustrating recovery and ensures that, at the end of the proceedings, there are at least still assets to secure (partial) payment. If substantial assets are frozen, this may sometimes be sufficient commercial leverage to settle the dispute. A pre-judgment attachment is made by first requesting the district court, ex parte, to grant leave for a pre-judgment attachment. Usually this means the claimant will have to show a draft writ of summons, which sets out the reasons for the claim. Any party who appears to have a justified claim may request a pre-judgment attachment, and in practice this is nearly always granted. A debtor can object to an attachment in summary proceedings or proceedings on the merits. The court will typically allow the debtor’s objections and lift the attachment if the claim for which the attachment is made appears to be unjustified or the debtor provides sufficient security for the claim. If assets are successfully located and frozen in the Netherlands, this may create jurisdiction for the district court in which the assets are located (unless there are other means to secure an enforceable title, e.g., on the basis of the Brussels I bis Regulation, or of a treaty). A pre-judgment attachment on intellectual property rights is possible in case of alleged infringement of intellectual property rights, where attachment is requested in order to preserve relevant evidence.
After assets are frozen, the party who has successfully done so must start proceedings on the merits within the period ordered by the court, unless court proceedings have been already initiated. The party lodging the attachment is liable for damages caused by the attachment, if its claim is ultimately rejected. However, if the claimant is successful and obtains a final enforceable judgment, then the pre-judgment attachment is converted into an executory attachment. That enables the plaintiff to finally execute against the assets of the defendant.
As of January 2017, a European cross-border pre-judgment attachment can also be used, based on the European account preservation order (EAPO).6 The EAPO allows a creditor located in an EU Member State to attach the bank account of its debtor located in another Member State using leave provided by the courts of the Member State that will have jurisdiction to rule on proceedings on the merits. To protect the debtor, the court can require the creditor to provide security. An EAPO can be executed within the EU without any special procedure or declaration of enforceability.
Inquiry proceedings are an effective (quick and relatively cheap) tool for shareholders to address perceived mismanagement in a Dutch company (BV or NV). The proceedings are frequently used, often by shareholder activists (an example of which is Elliott in the AkzoNobel case described above). The right of inquiry entitles shareholders (provided they meet statutory threshold requirements) to request the Enterprise Chamber of the Amsterdam court of appeal to investigate the affairs of Dutch company – a BV or NV. The court will order an investigation if there are well-founded reasons to doubt the correctness of the policy or course of action of a company (e.g., not respecting shareholders’ legal rights, conflict of interests, deadlock situations, inadequate or incorrect provision of information). The Enterprise Chamber can also order immediate temporary measures (e.g., prohibition on taking certain actions, suspension of directors, appointment of a temporary director or supervisory director with exceptional powers, suspension of a corporate resolution, suspension of voting powers, change of authorities of the company’s bodies, transfer of shares). Immediate relief requests are popular and may be very effective, and the court often handles them before the inquiry request itself. If the court has ordered an investigation and the investigators’ report has been made, the shareholders can request the Enterprise Chamber to determine that mismanagement has taken place and ask to take definitive measures (e.g., dismissal of directors, suspension or annulment of a corporate resolution). The Enterprise Chamber does not deal with liability of directors against the company or against shareholders. If mismanagement is established, shareholders usually file a civil liability suit in the district court to seek to obtain damages.
iii Class actions
As briefly mentioned above (see Section II above), the Netherlands is well-known for facilitating both class actions and the settlement of mass claims on an opt-out basis. It is important to distinguish the rules on class actions (also referred to as ‘collective actions’7) and those on the settlement of mass claims (Act on the Collective Settlement of Mass Claims8).
A class action can be filed (starting in the district court) to protect common or similar interests of prejudiced parties. A foundation or association (not an individual claimant) that has as its stated purpose the protection of common or similar interests of prejudiced parties may seek declaratory relief on behalf such persons. Typically, the declaratory relief sought is a judgment holding the defendant liable for certain acts or omissions. Damages cannot be awarded in class action litigation. But a judgment holding the defendant liable for damages (without actually awarding damages) may be used by individual claimants to sue for damages (as liability has already been determined) and is usually a powerful tool to force a defendant to accept a settlement using the collective settlement provisions. Currently, a bill is pending that proposes to abolish the existing ban on recovering monetary damages through class action. The bill also increases eligibility requirements for interest groups that wish to start a class action. To prevent an unnecessary burden or jeopardy for the party being sued when multiple interest groups wish to start a class action on the same subject, the court can designate one group to act as principal in the procedure. The judgment rendered in a class action suit on monetary damages can be declared binding once the draft bill comes into force.
A mass claim settlement is a settlement between a foundation (not an individual claimant) representing persons who suffered a loss (akin to a ‘class’), and a party that allegedly caused the damages, who agrees to compensate the class. Prior court litigation is not a prerequisite for such a settlement. At the joint request of the parties to the settlement agreement, the Amsterdam Court of Appeal can declare the settlement binding on all potential claimants who have not opted out. The agreement must be concluded between potentially liable parties, and one or more foundations or associations representing groups of persons for whose benefit the settlement agreement was concluded (‘interested persons’). The court will test inter alia the reasonableness of the settlement, whether the foundation or association adequately represents the interested persons and whether the interested persons have been properly notified and thus have had an opportunity to object and to opt out. If the court declares the settlement agreement binding, the agreement binds all persons covered by its terms, unless they have opted out within a certain time period after the binding declaration. The opt-out period is determined by the court, but is at least three months. Case law shows that the court – when deciding whether to declare a settlement binding – takes into account the rules promulgated in the ‘Claim Code’, which is a self-regulation initiative that aims to improve class settlement procedures and the governance structure of the entities acting for plaintiffs.
Whether foreign courts will recognise and enforce a binding declaration by the court depends ultimately on the local procedural rules of such courts. Courts within the EU most likely must do so because the decision to declare a settlement binding is a ‘judgment’ as referred to in article 2(a) Brussels I bis Regulation.9
Particularly since the US Supreme Court, in the Morrison judgment, rejected ‘foreign cubed’ class actions – meaning that class action judgments or settlements in the United States were typically limited to purchases and sales of securities in the United States – the Netherlands is often used for settlement of all other shareholders’ claims not covered by the US settlement. Several class actions settlements, which were declared binding by the Amsterdam court for non-US claimants, also had a parallel US settlement for US claimants. Examples are the Shell Reserves case10 and the Converium case.11 Both cases also illustrate the international scope of Dutch mass claims settlements. In its decision of 29 May 2009, the Amsterdam court of appeal declared the settlement in the Shell Reserves case binding (shareholders had argued they suffered damages due to misleading statements of oil reserves in Shell’s accounts). The settlement was made between the Dutch and English Shell entities and a Dutch foundation representing mostly non-Dutch shareholders residing in dozens of jurisdictions all over the world. In the Converium case (also involving shareholders that alleged damages due to misleading statements), none of the potentially liable parties were Dutch and only a very limited number of potential claimants were domiciled in the Netherlands. Yet the court nevertheless assumed jurisdiction, showing that it will do so even if only a few interested persons are domiciled in the Netherlands and provided one of the parties to the settlement agreement is a Dutch entity (like a Dutch ‘stichting’ (foundation) representing the interests of the interested persons).
The jurisdictional basis for approving mass claims settlements should be distinguished from the jurisdictional basis of the Dutch court in class action suits. For class action suits (collective actions), the common basis for jurisdiction is typically the domicile of the defendant or place where the harmful event occurred. The recent BP Deepwater Horizon case is an example of a Dutch court refusing to assert jurisdiction in a class action suit. On 7 November 2017, the Amsterdam Court of Appeal dismissed a collective action lodged by the Dutch shareholders’ association VEB, which had sought a declaratory judgment for liability against BP on behalf of a certain group of shareholders relating to the Deepwater Horizon accident in the Gulf of Mexico.12 The Court ruled that the fact that shareholders might have held securities in the Netherlands was insufficient to confer jurisdiction on the Dutch court. The court referred to the Universal Music judgment of the European Court of Justice.13 Applying that ruling to the facts, the court denied jurisdiction because the damages suffered were merely financial damages on a securities account in the Netherlands, while no other relevant factors justified jurisdiction of the Dutch courts.
The jurisdiction of the Dutch court, when declaring a class actions settlement binding, is structured differently. The parties to the settlement ask the Amsterdam Court of Appeal to declare the settlement binding on the entire class – i.e., all of the allegedly injured persons. For jurisdictional purposes, those persons are defendants, because the parties that settled effectively file a claim against them to settle their potential claims in consideration for the proposed settlement amount. The contracting parties send notice of the proposed settlement to the class, and class members may object to it and appear before the court. So, since the class members are considered defendants, if some of those are domiciled in the Netherlands, that provides a basis for jurisdiction, and others can then also be sued in the Netherlands based on close connection of the claim against them with the claim against the defendants domiciled in the Netherlands.14
Representation in proceedings
Representation by a lawyer admitted to the Dutch Bar Association is mandatory in Dutch civil litigation procedures. Parties to litigation before the cantonal division of the district court and the defendant in summary proceedings are exempt from mandatory representation. The same rules apply to both natural and legal persons.
Service out of the jurisdiction
The EU Service Regulation applies in the Netherlands.15 To serve a legal document to someone in another EU Member State, the sender submits the document to the Dutch transmitting agency. The agency will send the document to the receiving agency of the EU Member State. The receiving agency will, in turn, serve the document on the recipient. Furthermore, the Netherlands is a party to the Hague Service Convention, which applies to the service of judicial of extrajudicial documents in civil or commercial matters.16 Under this convention, the sender can submit a legal document to the competent Dutch authority, which will then forward the document to the designated central authority in the other contracting state. The central authority ensures that the documents are served on the recipient. With regard to the service of documents in EU Member States, the EU Regulation prevails over the Hague Service Convention. When neither the EU Service Regulation nor the Hague Service Convention applies, the CCP applies, which provides roughly for the same procedure as under the convention. However, instead of sending the document to a central authority, the Dutch authorities send it to a diplomatic or consular official in the receiving state.
Enforcement of foreign judgments
Foreign judgments can be enforced in the Netherlands after being declared enforceable by a Dutch court in an exequatur procedure, save that no exequatur is required for the enforcement of decisions concerning civil and commercial matters originating from EU Member States.17 If an exequatur is required to enforce a foreign judgment, the Dutch court may recognise and essentially copy the foreign judgment, without reviewing it on the merits, if four conditions are met: (1) the foreign court’s jurisdiction was based on an internationally generally accepted ground; (2) due process was observed in the foreign proceedings; (3) recognition does not violate Dutch public policy; and (4) the judgment is not inconsistent with any other judgment that is capable of recognition in the Netherlands.18 Applying ground (3) of this test, the Amsterdam Court of Appeal recently refused recognition of the Russian judgment in which Yukos Oil Company was declared bankrupt.19 The court found that the Russian authorities did not levy and enforce tax claims in an orderly and legitimate manner, but rather unlawfully aimed to bankrupt Yukos Oil Company. The court ruled that the Russian authorities’ actions were both procedurally and substantively contrary to Dutch public policy, and therefore refused recognition of the bankruptcy judgment.
Assistance to foreign courts
Courts within the EU can either request to take evidence directly in the Netherlands or request that a Dutch district court takes the evidence.20 In the latter case, a foreign court can approach the competent Dutch court directly. Another basis for assistance to foreign courts is the Hague Evidence Convention, which provides that foreign judicial authorities may request the competent Dutch authority to obtain evidence or to perform some other judicial act.21 It also allows for the taking of evidence by foreign diplomatic or consular officials in the Netherlands. Requests for the purpose of obtaining pretrial discovery for use in proceedings in common law countries will be denied, however, as the Netherlands has declared, on the basis of Article 23 of the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, that it will not execute letters of request issued for that purpose.
Access to court files
Dutch law does not provide for public access to court files. Court sessions are open to the public (apart from cases regarding family law or regarding minors). Exceptional circumstances may lead to closed hearings – e.g., for reasons of public policy or state security. A copy of a court decision (of which the operative part has been declared in public) can be requested from the court, irrespective of whether the proceedings are completed or ongoing. Many court decisions are published on the website of the judiciary22 on which party names are anonymised if they involve natural persons.
Third-party litigation funding is allowed under Dutch law, and is not bound by specific legislative or regulatory provisions. Parties are under no obligation to disclose their source of funding. As class actions are specifically suitable for litigation funding, the aforementioned Claim Code stipulates that associations and foundations acting as a representative should be non-profit based. However, that only applies to the association or foundation itself. Discussions on the proper reimbursement of litigation funders are particularly prevalent in mass claim settlements. For instance, in the Converium case23 the Court of Appeal held that lawyers’ fees amounting to 20 per cent of the total amount of the settlement were not unreasonable, also in view of standards developed in US case law on what is common and reasonable. According to their professional rules of conduct, Dutch lawyers may not agree to a ‘no win-no fee’ arrangement or similar arrangements.
IV LEGAL PRACTICE
i Conflicts of interest and Chinese walls
Conflicts of interest are governed by the professional rules of conduct that apply to all lawyers admitted to the Dutch Bar Association. Lawyers must refrain from representing the interests of more than one party, if such interests are in conflict or are likely to conflict. If clients share a common or similar interest, lawyers are allowed to represent more than one party. A lawyer who represents parties with conflicting interest is required to withdraw from the case as soon as the conflict arises, unless it is incapable of immediate resolution. An exception to this rule applies where parties are well-informed by their lawyer or law firm about a (potential) conflict of interest and they have given consent to that lawyer or firm to act for both parties. It is also in this context of mutual consent that firms in practice sometimes act for parties that may have conflicts of interest, but are in agreement with the firm acting for both clients subject to using Chinese walls.
ii Money laundering, proceeds of crime and funds related to terrorism
The Dutch Criminal Code prohibits acts of money laundering and has a broad scope. Most intentional acts with reference to assets that are directly or indirectly derived from a criminal act can be qualified as money laundering. The Anti-Money Laundering and Anti-Terrorist Financing Act obliges lawyers under certain circumstances to perform stringent client due diligence and to report unusual financial transactions, including those by clients, to the Financial Intelligence Unit-Netherlands. The implementation of the Fourth Money Laundering Directive (Directive 2015/849) into Dutch legislation (expected to take place in April 2018) will limit the circumstances under which mere simplified client due diligence is permissible. Conversely, enhanced client due diligence will apply in more situations, for instance for personal asset-holding vehicles and non-face-to-face-business relationships. In practice, these changes will mean that companies will be required to give more and more detailed information about the company and its ultimate beneficial owners to law firms who act for those clients.
iii Data protection
The Dutch Act on the Protection of Personal Data (APPD), which implements the European Data Protection Directive 95/46/EC and sets out the rules on data protection, will be replaced by the General Data Protection Regulation (GDPR) as of 25 May 2018. The GDPR is similar in many ways to the existing legal framework on data protection, but adds a number of stricter rules (which will be discussed below24) and provides more powers to regulators and higher sanctions (€20 million or 4 per cent of annual worldwide turnover, whichever is higher).
The APPD applies (as will the GDPR) to the processing of personal data (meaning data relating to an identified or identifiable natural person). ‘Processing’ is a broad term; it refers to the act of performing any operation or collection of operations on personal data, including collecting, recording, storing and using. It applies to activities of an establishment of a company in the EU, though sometimes also if the processing does not take place in the EU (e.g., a cloud service that uses non-EU subcontractors to perform part of the processing). The GDPR has a broader extraterritorial reach; it also applies to companies established outside the EU if they: (1) offer goods or service to individuals in the EU, or (2) monitor the behaviour of individuals in the EU.
Processing is only permissible based on a valid legal ground and for a clearly defined purpose. There may be a valid legal ground if processing is necessary, for example, for the performance of a contract, for compliance with a legal obligation, or for the purposes of the legitimate interests pursued by the controller or by a third party (except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data). Data processing is also permissible if the data subject has given consent to use data for a specific purpose.25 The GDPR sets strict rules for such consent, which must be explicit and is only valid if sufficient information is provided to the data subject prior to his or her consent. Processing of sensitive data (e.g., regarding health, religion, political affiliation, sexual preference, trade union membership and ethnicity) is prohibited – save for some limited exceptions (including if processing is necessary for the establishment, exercise or defence of legal claims, or whenever courts are acting in their judicial capacity).
When it comes to the use of personal data in litigation, it is important to keep in mind who wishes to access what type of data. Consider the following: a company wishes to start a litigation against an employee who has committed unlawful behaviour. After deliberation with their lawyer, they start to gather evidence on the unlawful behaviour by reviewing the employee’s emails. Such gathering of evidence entails processing personal data. These data can generally be processed based on the legitimate interests of the company.26 It is hardly ever based on consent, as this might not be appropriate or given, and moreover employee consent is generally not considered ‘freely given’ due to the fact there is a relationship of authority. When processing data, the processing methods must be proportional to the purposes of the gathering of evidence and the least privacy-invasive methods must be used (e.g., when performing email review, searching with key words – rather than looking at each email individually – is better in terms of proportionality and subsidiarity).
When evidence containing personal data is used for purposes of establishing facts in the context of a dispute, the client who has such data is generally responsible for the processing of personal data (the ‘data controller’). In the event that lawyers gather evidence on behalf of and at the instruction of the company, they qualify as data processors. The APPD requires that written agreements are made between a data controller and its data processors. Such agreements should contain provisions regarding instruction, security, supervision, and confidentiality. The GDPR introduces various requirements on maintaining internal records of data processing. In practice, this means law firms that use personal data will have to keep and update records of processing activities, just as their clients will have to do. If processing or giving access to the information in a litigation involves transfers of personal data to countries outside the European Economic Area, this is only allowed under specific circumstances.27
In court proceedings, the court may grant a request for disclosure of evidence that contains personal data. Such a request for access to personal data may be admissible based on the parties’ legitimate interests.28
V DOCUMENTS AND THE PROTECTION OF PRIVILEGE
Lawyers admitted to the Dutch bar (as well as civil law notaries) have legal privilege, which means they have the right to refuse to give testimony in front of a judge or to provide information that has been entrusted to them by the client in their professional capacity. Notable: under Dutch law, it is the lawyer who holds the privilege, not the client. This means that the lawyer can invoke the privilege, even if the client would want to waive it. The client only has a derived legal privilege so he or she can object to any disclosure of privileged communication with his lawyer. The lawyer, having a duty of confidentiality, cannot waive the privilege without the client’s consent. Case law has extended derived legal privilege also to the staff of lawyers or law firms.
In-house legal counsel do not have legal privilege, unless they are lawyers admitted to the Dutch Bar. Dutch lawyers can retain the registration as a lawyer with the Bar when employed as in-house legal counsel. Under Dutch national rules, in-house counsel admitted to the Bar have legal privilege to the same extent as external lawyers. The European Court of Justice confirmed in its Akzo ruling of 14 September 2010 that communications between a company and its in-house lawyer are not protected by professional legal privilege in EU competition investigations. In 2012, the Dutch Supreme Court ruled that – apart from the EU competition investigations – in-house lawyers do have legal privilege. The court held that in view of Dutch practice and the safeguards applicable to the professional practice of Dutch in-house lawyers by virtue of the Dutch Bar regulations, an in-house lawyer cannot be denied professional legal privilege solely because of the fact that he practices in employment by the company.29
Foreign lawyers who are admitted to the Dutch Bar have legal privilege. This will mostly concern lawyers from other EU Member States whose professional qualifications have to be recognised in the Netherlands pursuant to the implementation of Directive 2005/36/EC on the recognition of professional qualifications. Legal privilege should also be upheld if invoked by foreign lawyers who are not admitted to the Dutch Bar, but who are requested to give evidence in Dutch courts.
ii Production of documents
Dutch law provides for certain disclosure obligations, although a general discovery of documents is not part of the legal framework. In fact, the legislature’s wish is not to entertain anything akin to US-style discovery. Article 843a CCP provides that a party with a legitimate interest may request from another party access to or a copy of specific records relating to a legal relationship to which the applicant or its predecessor is a party. A legal relationship can be a contract, but it can also be an (alleged) tort. Disclosure can be requested from the opposing party, but it can also be requested from a third party, including parties related to the opposing party. The requesting party must state a direct and concrete interest by indicating to which extent the requested documents can support its legal position or claims. Parties can only request specific records, which prevents them from engaging in fishing expeditions: the records must be specified sufficiently to determine whether a legitimate interest exists specifically in those records. The request may pertain to information stored on any sort of device, including electronic devices or cloud storage. It may be sufficient to identify a category of documents (e.g., ‘all correspondence between parties A and B pertaining to topic X in the years Y through Z’). A request can be made in separate summary proceedings, or as a motion in ongoing litigation. When the request meets the criteria of Article 843a CCP, it can be denied only on limited grounds, such as the existence of a duty of confidentially relating to the requested documents, or for certain compelling reasons that outweigh the interests of the requesting party.30 Prior to a discovery request, and on the basis of the same criteria set out in Article 843a CCP, a pre-judgment attachment can be levied to prevent the disappearance or destruction of evidence.31
Courts also have wide-ranging means to order disclosure of evidence. In civil proceedings, a court can order a party to submit all documents, which the court deems relevant to the case. A party can only refuse this order for compelling reasons. The court will decide whether those reasons are justified, and, if not, it may draw any conclusion from the refusal as it deems fit. However, courts generally do not use their wide-ranging powers to order disclosure of evidence, and rules allowing the court to order evidence do not confer on a party the right to demand that the court use such powers (save for the request based on Article 843a CCP).
A more specific rule applies to the books and records that a party is required to keep in accordance with the law (such as a company’s accounts). A court may order, at the request of a party or ex officio, that a party submits its books and records. If the party refuses to do so, the court may again draw conclusions from this refusal as it deems fit.
VI ALTERNATIVES TO LITIGATION
i Overview of alternatives to litigation
In the Netherlands, the most frequently used forms of alternative dispute resolution are arbitration, mediation and binding advice.
The Dutch Arbitration Act (incorporated in Articles 1022 to 1077 CCP) is modelled on the UNCITRAL Model Law. The provisions of the Arbitration Act are mostly of an optional nature. The legislature has explicitly stressed, time and again, the importance of party autonomy in arbitration.
The most well-known arbitration institution in the Netherlands is the Netherlands Arbitration Institute (NAI). The NAI administers both national and international arbitral proceedings in a wide range of fields. In addition, there are a number of specialised arbitration institutions, which focus on arbitrations related to specific industries. For example, the Board of Arbitration for the Construction Industry is often chosen as the preferred arbitration institution for (national) construction disputes.
International arbitrations – with a seat of arbitration in the Netherlands – are mostly conducted under the arbitration rules of the ICC, UNCITRAL, or the NAI. The Permanent Court of Arbitration, with its seat in the Peace Palace in The Hague, administers quite a number of arbitrations each year – both public international law and commercial arbitrations.
The general legal climate in the Netherlands is characterised as arbitration-friendly and benefits from the consistent support of the Dutch government. Also, the Supreme Court is reluctant to approve or condone intervention in arbitral proceedings and awards. Recourse against a final arbitral award is only possible in proceedings to set aside the arbitral award (provided for in Articles 1064-1067 CCP) or to revoke the award (Article 1068 CCP). To increase the efficient and timely resolution of the dispute, the proceedings for the setting aside and enforcement of arbitral awards are limited to one fact-finding instance: the court of appeal (and only subject to Supreme Court appeal, which by its nature is limited to errors of law).
Parties to an arbitration agreement may obtain interim relief from the arbitral tribunal on the merits, if it has already been constituted. It is also possible that parties agree that a separate arbitral tribunal has the power to award interim relief (e.g., by selecting arbitration rules (e.g., ICC or NAI) that provide for such a separate tribunal, such as the ICC Arbitration Rules or the NAI Arbitration Rules). Interim measures can also be obtained through state court proceedings, if the requested measure cannot be obtained in arbitration, or at least not sufficiently fast. Pre-judgment attachments of assets can only be granted by the state court. As is the case for summary proceedings before the district court, parties may use stand-alone arbitral summary proceedings as only means of dispute resolution and are not required to follow-up with arbitral proceedings on the merits.
The request to set aside an arbitral award must be made within three months after the award was sent, or within three months after leave for enforcement has been served on the award debtor (in which case only the debtor can make the request). An arbitral award can only be set aside on a limited number of grounds. The Supreme Court has, time and again, ruled that the courts should act with restraint in setting aside arbitral awards. It has explicitly held that proceedings to set aside an award may not be used as an appeal in disguise and that the public interest in the effectiveness of arbitration requires that a court only sets aside an arbitral award in clear-cut cases. Grounds for setting aside are: (1) there was no valid arbitration agreement; (2) the arbitral tribunal was constituted in violation of the applicable rules; (3) the arbitral tribunal has not complied with its mandate; (4) the award is not signed or does not contain any reasons whatsoever; or (5) the award, or the manner in which it was made, violates public policy. The court may, at the request of a party or of its own motion, suspend the setting asides proceedings to enable the arbitral tribunal to reverse the ground for setting aside; no appeal is possible against such a decision.
An arbitral award only becomes enforceable after a leave for enforcement (exequatur) is granted – which, for foreign arbitral awards, must be granted by the court of appeal. Once the leave for enforcement has been granted, the arbitral award may be enforced in the Netherlands against assets of the award debtor. The Netherlands is party to the UNCITRAL Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention). An arbitral award made in a foreign country that is part of the New York Convention, must be recognised and enforced in the Netherlands, unless one of the exceptions of Article V New York Convention applies. Recognition and enforcement of the award may be refused, at the request of the party against whom it is invoked, if that party furnishes proof that: (1) the arbitration agreement was not valid or not validly entered into; (2) the award debtor was not properly notified of the arbitral proceedings or not able to present his case; (3) the award deals with issues not submitted to arbitration; (4) the composition of the arbitral authority or the arbitral procedure was contrary to the parties’ agreement or to the law of the arbitration venue; or (5) the award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made. Recognition and enforcement of an arbitral award may also be refused if the court in the country in which enforcement is sought finds that (1) the subject matter of the difference is not capable of settlement by arbitration under of the law of that country; or (2) the recognition or enforcement of the award would be contrary to the public policy of that country. If there is no applicable treaty concerning recognition and enforcement of the award, the award made in a foreign state may be enforced in the Netherlands on the basis of the CCP, which contains similar grounds for refusal to grant leave for enforcement as the New York Convention.
Mediation – the structured process in which a third party is asked to help parties reach agreement – is well-established as one of the standard forms of alternative dispute resolution in the Netherlands. Dutch law has no statutory provisions requiring parties to mediate or determining how mediations must be conducted. The perception is often that mediation is used primarily in family and employer–employee relationships, and less frequently for the resolution of commercial disputes. While it is certainly true that mediation is often used in those type of cases, and although business mediation may not be as frequently used as in certain common law jurisdiction, it is nonetheless regularly used in high-stakes disputes between large corporates, both national and international, with often favourable outcomes. Due to its confidential nature, there is limited public information available about these mediations. A recent example of the successful use of mediation in a major corporate dispute is the Fortis class action settlement, mentioned above (see Section II), in which agreement had been reached through the use of mediation (both in regard to the first settlement, rejected by the Amsterdam Court of Appeal, as in regard to the amended settlement, currently pending before the Amsterdam Court of Appeal).
In keeping with its voluntary nature, there are very few mandatory rules that apply to mediations conducted in the Netherlands. In business mediation, parties often prefer not to have to negotiate mediation terms on an ad hoc basis and therefore opt for a set of predetermined rules – such as the mediation rules of the ICC, of the Netherlands Arbitration Institute, or of the Dutch Mediation Institute (NMI).
Directive 2008/52/EC of 21 May 2008 (on certain aspects of mediation in civil and commercial matters, which applies to cross-border disputes within the EU) is implemented into Dutch law almost verbatim, and is restricted to EU cross-border mediations. Parties to an EU cross-border mediation can request the court to make the content of a written agreement resulting from mediation enforceable. Also, the mediator and persons involved in the mediation can recuse themselves from having to testify in court about what occurred in the mediation, provided confidentiality of the mediation has explicitly been agreed upon. Since there is no Dutch statutory rule compelling mediators and parties involved in a mediation to maintain confidentiality, it is important that parties explicitly agree on confidentiality. To promote mediation, Dutch substantive law provides that a mediation interrupts limitation periods.
iv Other forms of alternative dispute resolution
Parties can agree to solve their dispute by a decision given by one or more third parties appointed as binding advisers. The advice rendered is considered to be an agreement between the parties. Consequently, a party failing to comply with the advice is in breach of contract. Due to its aim of providing certainty and finality, an agreement on binding advice can be vacated only on limited grounds (such as mistake, undue influence, duress or misrepresentation). A binding advice agreement does not preclude the possibility of requesting relief in summary proceedings. Except for general due process and contractual requirements, there are no specific procedural rules concerning binding advice.
The Financial Services Complaints Tribunal (Kifid) is the most well-known institute that resolves disputes on the basis of binding advice and has been explicitly recognised by the Minister of Finance for that purpose. Consumers who are dissatisfied with services of a bank, insurer or another financial institution can turn to the Kifid to have their claim resolved. The Act on Financial Supervision requires financial institutions to submit to dispute resolution by Kifid.
VII OUTLOOK and CONCLUSIONS
Events to look out for in 2018 will be the establishment of the Netherlands Commercial Court, the legislative process regarding class actions, and the full implementation of the digitalisation of the courts and increased focus on tailor-made proceedings and active case management.
The legislation establishing the NCC is expected to come into effect in 2018. As mentioned before (see Section II), the NCC is designed as forum for international civil and commercial disputes. In order to facilitate international parties to a cross-border conflict, English will be the primary language of the NCC, and the proceedings will be largely digitalised. The NCC’s staff will be selected based on their excellent understanding of company law, experience in the field of cross-border dispute resolution, and proficiency in English. Considering the efficiency, pragmatism and low costs of Dutch proceedings, we believe the NCC will meet the growing need for efficient and reliable resolution of international disputes. It may become an attractive alternative for international arbitration and also for English court proceedings, in view of their relatively high costs and of Brexit.
The proposed amendment of the current legal framework for class actions is expected to be subject to further discussion in 2018. The main amendments will be the abolishment of the ban on claiming monetary damages in a class action, the possibility for the court to appoint a principle to represent all interest groups relating to the same subject of a class action, the tightening of eligibility requirements for interest groups wishing to start a class action, and the introduction of the court’s authority to declare a settlement resulting from a class action law suit binding on all prejudiced parties, subject to an opt-out system. We expect these amendments to increase the efficiency and effectiveness of litigating class actions in the Netherlands.
The implementation of the project to modernise civil proceedings will significantly change the way proceedings are conducted, including becoming fully digital. Currently, the Supreme Court and two district courts already use the new procedural framework. Other district courts and the courts of appeal will follow in the course of 2018 and implement the amended procedural law. We anticipate that proceedings will become tailor-made more often.
In conclusion, the Netherlands is putting substantial effort into making its dispute resolution framework more attractive in many ways, also for the benefit of foreign parties.
1 Eelco Meerdink is a partner at De Brauw Blackstone Westbroek.
2 US Supreme Court. 24 June 2010. No. 08-1191, Morrison v. National Australia Bank Ltd.
3 Amsterdam Court of Appeal, 16 June 2017, ECLI:NL:GHAMS:2017:2257.
4 At the time of writing the Amsterdam court of appeal has not yet decided on this renewed application.
5 Amsterdam court of appeal, 29 May 2017, ECLI:NL:GHAMS:2017:1965.
6 Regulation (EU) No. 655/2014 of the European Parliament and of the Council of 15 May 2014 establishing a European Account Preservation Order procedure to facilitate cross-border debt recovery in civil and commercial matters.
7 Governed by Article 3:305a Civil Code.
8 Articles 7:907-7:910 Civil Code and Articles 1013-1018a CCP.
9 Regulation (EU) No. 1215/2012 of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast) (Brussels I bis Regulation)
10 Amsterdam Court of Appeal, 29 May 2006, ECLI:NL:GHAMS:2009:BI5744.
11 Amsterdam Court of Appeal, 12 November 2010, ECLI:NL:GHAMS:2010:BO3908 and 17 January 2012, ECLI:NL:GHAMS:2012:BV1026.
12 Amsterdam Court of Appeal, 7 November 2017, ECLI:NL:GHAMS:2017:4588, affirming Amsterdam District Court, 28 September 2016, ECLI:NL:RBAMS:2016:6593.
13 European Court of Justice, 16 June 2016, Case C-12/15, ECLI:EU:C:2016:449, holding that ‘Article 5(3) of Regulation (EC) No. 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that, in a situation such as that in the main proceedings, the ‘place where the harmful event occurred’ may not be construed as being, failing any other connecting factors, the place in a Member State where the damage occurred, when that damage consists exclusively of financial damage which materialises directly in the applicant’s bank account and is the direct result of an unlawful act committed in another Member State.’
14 Based on Article 8(1) Regulation (EU) No. 1215/2012 of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast) (Brussels I bis Regulation), Article 6(1) Lugano Convention of 30 October 2007, or, for parties in countries that are not member of EU/Lugano Convention: Article 107 CCP. Usually the settlement will be structured in such a way that it will be executed in the Netherlands, which provides a separate jurisdictional ground based on Article 7(1) Brussels I bis Regulation. The Converium decision also mentioned additional factors that the court used to assume jurisdiction, see Amsterdam Court of Appeal, 17 January 2012, ECLI:NL:GHAMS:2012:BV1026.
15 Regulation (EC) No. 1393/2007 of 13 November 2007 on the Service in the Member States of Judicial and Extrajudicial Documents in Civil or Commercial Matters.
16 The Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters.
17 Regulation (EU) No. 1215/2012 of 12 December 2012 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (recast).
18 Supreme Court, 26 September 2014, ECLI:NL:HR:2014:2838 (Gazprombank).
19 Amsterdam court of appeal, 9 May 2017, ECLI:NL:GHAMS:2017:1695 (S.Ct appeal is pending).
20 Regulation (EC) No. 1206/2001 of 28 May 2001 on Cooperation between the Courts of the Member States in the Taking of Evidence in Civil or Commercial Matters.
21 The Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters.
23 Amsterdam Court of Appeal, 17 January 2012, ECLI:NL:GHAMS:2012:BV1026.
24 Rules of the GDPR not discussed here, but which may also be relevant for data processing in the context of dispute resolution, include rules regarding the information to be provided by the controller to the data subject (Article 13 and 14), regarding rights of the data subject to access (Article 15), rectification (Article 16), erasure (Article 17), restriction of processing (Article 18), data portability (Article 20), object to processing of personal data (Article 21), regarding actions to be taken in case of data breaches (Article 33ff) and regarding the appointment and duties of data protection officers (Article 37ff).
25 As consent should be sufficiently specific, freely given, based on information and can be revoked at any time, it is not generally advisable to base processing on consent (solely). Other valid legal grounds are that the processing is necessary in order to protect the vital interests of the data subject; or that the processing is necessary for the proper performance of a task carried out in the public interest by an administrative body to which the data is provided.
26 Legitimate interests can include alleged wrongdoing by an employee, preparation for litigation or compliance with foreign legal obligations.
27 It is only allowed if (1) the recipient country is deemed by the European Commission to provide an adequate level of data protection or (2) the non-EEA recipient is willing to agree to an EC model contract and a permit for transmission is obtained.
28 According to Article 843a CCP a party can request (access to) certain documents in order to prepare its litigation. In the case Court of appeal Den Bosch, 14 October 2013 (ECLI:NL:GHSHE:2003:AM7927) it was decided that a request for documents containing personal data under Article 843a CCP should be judged as a request to process data under the APPD. The court of appeal ruled that such a request can be complied with based on legitimate interests of that party, namely the finding of the truth, which were not outweighed by the privacy interest of the data subjects.
29 Supreme Court. 15 March 2013, ECLI:NL:HR:2013:BY6101.
30 For instance, because records encompass confidential personal or corporate material, or medical, financial or national security information.
31 Supreme Court. 13 September 2013, ECLI:NL:HR:2013:BZ9958.