Dutch Judiciary Research Articles

Civil liability for climate change? The proposed tort in Smith v Fonterra with reference to France and the Netherlands

AbstractAs we enter into a period of unprecedented climate instability, litigation is becoming an attractive way to hold private entities accountable for their contribution to global warming. In Smith v Fonterra, New Zealand's Supreme Court is considering whether a common law duty to limit emissions should form part of New Zealand's environmental protection framework. This follows the development of several civil liability mechanisms for environmental damage in overseas jurisdictions. This article examines the implementation of civil liability for climate damage in France and the Netherlands, illustrating the difficulties of effectively dealing with climate change, and its destabilising effect on the law. France implements civil liability mostly on the basis of traditional tort rules, which function to severely restrict its scope. Conversely, the Dutch judiciary introduced a due diligence obligation that requires corporate strategies to be sufficiently in line with international obligations regarding emissions. The latter approach carries more promise, demonstrating that for private entities to be held civilly liable for their contribution to climate change, there must be significant departure from traditional legal doctrine, perhaps in the direction of climate due diligence.

Forensic advisers working for all district courts and courts of appeal in the Netherlands: An overview and discussion.

Since late 2020, all district courts and courts of appeal in the Netherlands have internal forensic support in the form of "forensic advisers." This position was created in 2012 and resulted from the efforts made to expand knowledge of the forensic sciences within the inquisitorial Dutch criminal justice system. Forensic advisers are generalists and support judges in all matters concerning forensic science, for example, ensuring the logically correct interpretation of evidence, assessing the relevant expertise of forensic experts, and helping to avoid statistical fallacies. In this article, we discuss the origins of the position, the activities performed, and both positive and critical remarks about the position in the literature. Extensive attention is paid to the boundaries of the role and of the advice that is offered. We conclude that the forensic adviser has strengthened the forensic science expertise within the Dutch judiciary and we give recommendations for a more robust anchoring of this expertise.

What climate litigation reveals about judicial competence

AbstractIn recent years, the US and the Netherlands have been on opposing sides of the spectrum regarding climate litigation. Dutch courts, in several revolutionary climate cases, have been an arena of societal change, whilst climate claims in the US have been largely unsuccessful. In a way this difference seems strange, because the US judiciary has the power of constitutional review, whilst the Dutch judiciary does not. Against that background, this paper extensively compares the doctrines of judicial competence regarding political questions in both jurisdictions. As a comparative framework, this paper uses three judicial phases, namely: the institutional phase, the substantial phase, and the remedial phase. Climate litigation reveals that the Dutch doctrine of judicial competence is focused on the substantial and remedial phases, which has allowed it more freedom in reviewing climate litigation. On the other hand, climate litigation reveals that the US doctrine of judicial competence is focused on a strict institutional phase, dominated by the Political Question Doctrine (PQD). The main contribution of this paper to the constitutional debate is that climate litigation reveals fundamental differences in doctrines of judicial competence. This is not only an important takeaway for future climate litigation, but also, in terms of the Radbruch formula, for other potential gaps between the executive and justice.

Remote justice: a visual essay on the response of the Dutch justice system to the COVID-19 pandemic

The measures to contain the spread of COVID-19 significantly impacted (criminal) justice sectors worldwide, including the justice system in the Netherlands. The administration of justice could no longer take place in physical court meetings. Many cases could not be processed. Behind the scenes, people worked hard to scale up the technological infrastructure needed and make court buildings COVID-proof. Necessary (emergency) legislation was created in consultation with stakeholders. The Dutch judiciary speeded up the implementation and use of videoconferencing, including the criminal courts. Over time, lawyers and court reporters became critical in the (social) media. They pointed to problems with respect to organisation, technology, communication, and legal principles. The principle of a fair trial, more specifically the principle of equality of arms, risked being violated. Equality of arms means that the public prosecutor and the defence must have equal opportunities to convince the court. These opportunities differ by the means (modality) by which a person is present. Many of us have experienced how different on-screen communication is from in-person contact, affecting what and who can be seen and heard. This is also the case for people who are digitally or physically present in court, either as a professional (e.g. lawyer and prosecutor) or as citizen (e.g. suspect and victim). Other fundamental rights were affected as well. The time slots for videoconferencing, organised by prisons, to allow suspects and their lawyers to participate from prison were problematic. Another challenge was to safeguard the public nature of the judiciary, the public access to the courts. This visual essay describes the response of the Dutch justice system to the pandemic over time and incorporates images that present several practices of seeing, looking, and showing. According to several organisations, actors, and legal professionals working in the justice system worldwide, trial by screen is here to stay.

Policy reforms and productivity change in the judiciary system: a cost function approach applied to time series of the Dutch judiciary system between 1980 and 2016

AbstractThe judiciary is constantly undergoing change in order to respond to a wide range of social developments that have brought the sector under increasing pressure. In order to deal with the constant call for enhancing budgets, different policy measures have been taken to downsize the appeal to the judiciary and to improve productivity. One of the central questions hereby is whether these measures have actually contributed to a more productive sector. This paper focuses on the development of productivity in the judiciary and how policy measures have affected productivity. In this empirical analysis, we apply a cost function model to time series data of the Dutch judiciary between 1980 and 2016. The results show a dramatic decline of productivity over the entire period (−50%), in spite of various policy measures. The year 2001 can be regarded as a turning point, as since then productivity has remained more or less stable. It seems that this is largely due to the establishment of the Council for the Judiciary and the associated increase in (financial and operational) autonomy for the judiciary. Another striking result is that technical change is biased toward using more personnel through time.

Financing the Judiciary in the Netherlands: between work overload in the courts and government control of the Judicial Budget.

The Netherlands has a well-balanced but complicated system for financing the judicial functions of government. Judicial appropriations are determined by the collective production of the ordinary courts, the Central Appeal Board, and the Trade and Industry Appeals Tribunal. Different formula rates are applied to each jurisdiction. For example, Plural Judge Panel cases deliver far more money than cases that are decided by a single judge. Below, I argue why, from a constitutional perspective, the appropriations process for funding the Dutch judiciary has undesirable consequences for the functioning of judges and courts.

Controlling the Courts: New Public Management and the Dutch Judiciary

Like many public sector organizations, in the past decades the Dutch judiciary has come to adopt New Public Management (NPM) practices and processes. In this article, we analyze this adoption from a management and organizational control perspective. Using data from a large survey among Dutch judges, we see a “mismatch” between the nature of the NPM-inspired management control systems and the work-related experiences of the judges and inquire into the consequences thereof for judicial work and organization.

‘Buiten de rechter om?’

The Dutch Judiciary has only a very limited role in the imposition of sanctions with traffic offenses. With other minor offenses its role is rather limited and has decreased. There has been a striking shift from the imposition of penal sanctions to sanctions based on administrative law in this area. With major offenses (crimes) the role of the judiciary is still significant and has not diminished over the last 20 years. This despite policy efforts to boost out of court sanctioning.The Judiciary is a fundamental pillar of the rule of law. It offers legal protection, by judging and, if necessary, penalizing violations of norms in a fair trial. In this way not only justice is done with individual cases. Case law has wider implications: confirmation and development of norms and thus general prevention. To fulfil this aim a certain volume of cases and openness of the judgment process is necessary.

Picking up the pace – legal slowness and the authority of the judiciary in the acceleration society (a Dutch case study)

ABSTRACTThis paper inquires into the nature of the crisis haunting the judiciary in our contemporary society. Drawing upon the work of Hartmut Rosa, it is stated that our society is an acceleration society and that this puts the judiciary under great pressure. The resulting crisis is twofold since it is both of an organizational and fundamental nature. The focus of this paper is on the – in our view – underexposed latter crisis because of its effect on the very core of the judiciary, namely the legitimacy and authority. The judiciary is confronted with the demand to speed up, whereas the nature of the legal system seems to reject an accelerated tempo and even needs a certain degree of slowness to communicate its accuracy. It is not just the process of acceleration that erodes or at least changes the authority of the judiciary but it concerns a complex interplay of expectations induced by acceleration, both externally by justice seeking citizens and internally by the judiciary’s own management and politics, and how these expectations are met, or not. This is illustrated by a case study on the position of the Dutch judiciary, but holds true for other national and international adjudication as well.

Procedural Justice Seen to Be Done:<br>The Judiciary’s Press Guidelines in the Light of Publicity and Procedural Justice

As in other jurisdictions, the Dutch judiciary has been confronted with public unease about criminal justice and is trying to enhance its legitimacy. System and culture however contain hardly any opening for public involvement in criminal justice, and this implication of the publicity principle traditionally encounters disapproval. In its aim of (re)gaining confidence in the criminal justice system, publicity intertwines procedural fairness and public influence: it requires that the (perception of the) lay public is taken into account when conducting proceedings and phrasing the judgment, thereby ensuring visible conformity with publicly-held fairness standards and thus a perception of legitimacy by participants and the public alike. Procedural justice research confirms these notions in finding that the perception of proceedings as fair legitimizes the judiciary and the justice system. The judiciary’s wish to enhance transparency – of which the press guidelines (2013) are the most important expression – is therefore essential. Both publicity and the procedural justice concept refer to the procedure as central in legitimization and therefore provide important arguments for allowing the audiovisual registration of criminal proceedings. As system and culture do not change easily, this may lead to more public-minded proceedings and to a shift in the public debate towards procedure.

A Dutch View on Discovery: Short and Sweet

THE United States is internationally known as a jurisdiction with broad discovery rules that pose extensive costs on defendants. (1) Like many other continental European jurisdictions, the Netherlands does not have U.S. style discovery. Nevertheless, there are more fact-finding options available under Dutch law during and before civil proceedings than one would expect at first glance. Those options are available even when the proceedings have been or will be commenced before a foreign (non-Dutch) court. A complicating factor, however, is the fact that the available options are spread out in statutory regimes of varying nature or have been developed in the case law of the Dutch Supreme Court, the highest civil court in the Netherlands, with its seat in The Hague. The result is a patchwork of fact-finding options. The most-used evidentiary patches will be briefly discussed below, including their potential cross-border implications. We will discuss the relevant provisions relating to the production of documents, the pre-trial hearing of witnesses, and the Dutch so-called inquiry proceedings, which are widely used in shareholder disputes. Those fact-finding options could be a useful tool for companies that are involved in commercial disputes and want to strengthen their settlement negotiation position, but don't want to get involved in lengthy and costly discovery proceedings. The fact-finding instruments discussed below can also be used as part of a sophisticated commercial dispute-resolution strategy. Before we zoom into three fact-finding mechanisms, a brief overview of some relevant features of the Dutch legal system will follow. I. General The Netherlands is a civil-law jurisdiction, which means that there are no jury trials, no contingency fees and no punitive damages. The Dutch judiciary is known for its competent and independent approach, a combination of common-law pragmatism with German Grundlichkeit. Moreover, the Dutch judiciary is internationally oriented and has vast experience with complex high-profile litigation and international disputes. It is accustomed to handling disputes with cross-border implications and involving foreign parties. Although the language of the court is Dutch, the judiciary doesn't feel uncomfortable when parties submit or present documents written in English. The internationalization of the Dutch judicial system was the subject of the Dutch Supreme Court's annual report for 2009-2010. (2) Also in 2011, the President of the Supreme Court expressed in a speech that Dutch judges must take into account the international dimensions of the cases with which they are confronted. (3) The Netherlands has cost-shifting rules under which the loser pays the winner's legal fees, but the loser never fully pays the winner's real costs. The legal fees that the losing party must pay are capped and are related to the amount in dispute and the number of motions or pleadings that parties filed, rather than to the winner's actual expenditures. Furthermore, court fees for individuals and for companies differ. For example, if an amount of EUR 1,5 million is in dispute, District Court fees would be EUR 3,829 for companies and EUR 1,519 for individuals. Court of Appeal fees would be EUR 5,114 for companies and EUR 1,601 for individuals. Supreme Court fees would be EUR 6,396 for companies and EUR 1,920 for individuals. (4) The winning party will receive a cost recovery dependent on the number of procedural acts, be it motions or hearings, it performed before the court. Depending on the number of motions the parties filed, the winning party before the District Court or the Court of Appeal will receive a in a case with a value of EUR 1,5 million a cost recovery of EUR 3,211 per motion or a hearing attendance. (5) The rules in the Supreme Court are slightly different: if the ruling is quashed, the party that appealed the ruling will receive EUR 2,600. If the ruling is confirmed, the opposing party will receive EUR 2,200. …

The Netherlands – Reorganising the Dutch Judiciary

Leny E. de Groot-van Leeuwen (University of Utrecht / University of Nijmegen, the Netherlands) describes the plan of reorganisation for the Judiciary in the Netherlands formulated in the light of changing public views and circumstances. Published in the Letter from … section of Amicus Curiae - Journal of the Institute of Advanced Legal Studies and its Society for Advanced Legal Studies. The Journal is produced by the Society for Advanced Legal Studies at the Institute of Advanced Legal Studies, University of London.

Organization Development of the Dutch Judiciary, between Accountability and Judicial Independence

The International Journal for Court Administration (IJCA) is an electronic journal which focuses on court, judicial, and justice system administration, management, and governance. It provides a platform for the professional exchange of knowledge, experience and research in those areas for a diverse audience of practitioners and academics.Its scope is international. The editors welcome submissions from court officials, judges, justice ministry officials, academic researchers and consultants whose work and interests lie in the practical aspects of the effective administration of justice.

Dining out in the trias politica: Involvement of the Dutch judiciary in the legislative process

(2003). Dining out in the trias politica: Involvement of the Dutch judiciary in the legislative process. International Journal of the Legal Profession: Vol. 10, No. 3, pp. 269-280.

On European Freedoms and National Mandatory Rules: The Dutch Judiciary and the European Convention on Human Rights

1. Introduction. Delimitation of the subject: the paper is restricted to human

Judicial policy‐making in the Netherlands: The case‐by‐case method

The Dutch judiciary is modelled on the French one and places a premium on the separation of powers. One manifestation of this adherence to the strict separation of powers is the prohibition against judicial review. Judges in the ordinary courts, however, have since early in this century given broad interpretations to statutes becoming significant policy‐makers in Dutch politics because of the system of coalition governments. Laws are drafted in vague terms, leaving interpretation to the courts, and issues on which there is no possibility of political compromise find resolution only in the judicial forum.

Decisions of Netherlands Courts involving State Immunity

I. The report submitted by the present author to the Netherlands' International Law Association on the occasion of its annual meeting in 1973 deals with Dutch court practice in matters of State Immunity. It includes an analytical introduction (I), an explanation of some general principles regarding State Immunity, particularly in connection with the implementation of international customary law by the Dutch judiciary, as well as a review of the terminological problems involved (II), an explanation of the few statutory provisions affecting State Immunity which are in force in the Netherlands (III), and an extensive commentary on Dutch court practice in matters of State Immunity on the basis of the court decisions issued and published in this field since 1840 (IV). Abstracts of all relevant court decisions placed in chronological order have been added to the report (Annex).