Short Reads

Stibbe Litigators participate in consultation draft bill to modernise the law of evidence

Stibbe Litigators participate in consultation draft bill to modernise

Stibbe Litigators participate in consultation draft bill to modernise the law of evidence

03.09.2018 NL law

Members of Stibbe’s Commercial Litigation practice group have participated in the public consultation of a draft bill to modernise and simplify the law of evidence in civil procedure.

An overview of the draft proposal was provided previously on this blog by Petra Vos and Daan Barbiers.

The main goal of the draft bill is to enhance truth seeking in civil procedure and to promote efficiency and effectiveness. To that effect, the draft bill proposes to extend the role of the court. When considering a claim or defence, the court is expected to introduce and investigate facts that were not brought forward by the parties, therefore extending the factual grounds in the proceedings. The draft bill also introduces a broad pre-trial information gathering duty for the parties, resembling pre-trial discovery in common law jurisdictions.

In their response to the draft bill, the members of the Commercial Litigation practice group have raised questions regarding these two elements. Establishing the truth and efficiency are both important aspects within civil procedure to arrive at a just and balanced outcome, but the draft bill overreaches itself. If the court uses its initiative to introduce new factual grounds in the proceedings, it inevitably participates in the debate between the parties. This undermines the independent role of the court. The proposed pre-trial information gathering obligation of the parties will increase costs and complicate the proceedings. This may impede access to justice.

The response is available here (in Dutch).

Team

Related news

21.05.2019 BE law
The International Comparative Legal Guide to Corporate Recovery & Insolvency 2019 - Belgian chapter

Articles - This Guide covers common issues in corporate recovery and insolvency - including issues that arise when a company is in financial difficulties, insolvency procedures, cross-border issues - in 30 jurisdictions. Pieter Wouters and Paul Van der Putten of Stibbe Brussels' Litigation department contributed to the Belgian chapter of the ICLG.

Read more

11.04.2019 NL law
Double roles in attributing knowledge

Short Reads - The knowledge of a person who in fact runs a company can be attributed to the company if the sole director and shareholder is a 'straw man', the Supreme Court confirmed in a judgment of 29 March 2019. The rules by the Supreme Court are not revolutionary or even new. But circumstances essential for the attribution of knowledge are ignored. The double role played by the 'man in charge' raises questions about how to apply the rules as identified by the Supreme Court to the facts

Read more

01.05.2019 NL law
Arbitral award obligating Ecuador to prevent enforcement of USD 8.6 billion order does not violate public order

Short Reads - Due to environmental damage as a result of oil extraction in the Ecuadorian Amazon, oil company Chevron was ordered to pay USD 8.6 billion to Ecuadorian citizens. In order to claim release of liability, Chevron and Texaco initiated arbitration proceedings against Ecuador. Arbitral awards ordered Ecuador to prevent enforcement of the Ecuadorian judgment, leaving the Ecuadorian plaintiffs temporarily unable to enforce their judgment. According to the Supreme Court (12 April 2019, ECLI:NL:HR:2019:565), these arbitral awards did however not violate public order.

Read more

10.04.2019 NL law
Damage due to a defective driveway and the Dutch twenty year limitation period: When does limitation start in case of a continuous event that causes damage?

Short Reads - On 22 March 2019, the Dutch Supreme Court ruled (ECLI:NL:HR:2019:412) that the strict liability for buildings (opstalaansprakelijkheid) is not linked to a specific damaging act but to a damaging condition, as referred to in section 6:174 DCC. Therefore, there is no reason to regard a damaging act as an 'event that caused damage' as referred to in section 3:310 DCC concerning the limitation period for claims for damages.

Read more

01.05.2019 NL law
Termination of an agreement: compelling grounds?

Short Reads - When does a reason given for termination of an agreement qualify as a compelling ground? That was the central question in the Dutch Supreme Court's decision of 29 March 2019 (ECLI:NL:HR:2019:446). Depending on the nature of the agreement and the circumstances of the case, termination may only take place under certain conditions, e.g. only on compelling grounds. 

Read more

04.04.2019 NL law
European Court of Justice: actio pauliana is covered by jurisdiction rule of forum of contract. A judgment with foreseeable consequences?

Short Reads - Imagine that a debtor voluntarily concludes a transaction with a third party where he knows (or should know) that it hinders the creditor's possibilities of collecting the debt. In civil law countries, a creditor can invoke the nullification of that legal act by means of a so-called actio pauliana. This raises the question of which court has jurisdiction in the case of an international dispute, regarding an actio pauliana, that is instituted by a creditor against a third party?

Read more

Our website uses functional cookies for the functioning of the website and analytic cookies that enable us to generate aggregated visitor data. We also use other cookies, such as third party tracking cookies - please indicate whether you agree to the use of these other cookies:

Privacy – en cookieverklaring