Dutch Law Research Articles

Claim to Compensation between the Legal and the Genetic Father: A Testcase for the Dogmatics of Unjust Enrichment

Under French, German and Swiss law, if another man is found to be the father of a child, the putative father can claim compensation for the maintenance paid for the child on the ground of unjust enrichment. An analysis of the conditions and consequences of this claim shows that this liability for enrichment is subject to distinct prerequisites and that the exact construction of the claim remains unclear in many aspects. Differences between the three legal systems already exist regarding the contestation of paternity: French law, for example, only permits contestation under significantly more restrictive conditions than the other two legal systems. In particular, however, only German case law permits the incidental determination of paternity for actions brought by the putative father against the genetic father, which is questionable from the point of view of status law. Dogmatic distortions are also evident in the application of the law of enrichment, where even the ground of the action is not stated consistently: French law, which was reformed in 2016, appears to ground the action of the apparent father on a subsidiary liability for enrichment (actio de in rem verso), while German law indirectly leads to the condictio indebiti and, finally, the Swiss Federal Court applies the condictio ob causam finitam. These divergences are by no means of a merely conceptual nature; rather, the three actions are linked to entirely different conditions and may also result in different legal consequences in the details. The comparison of the three legal systems thus reveals, on the one hand, persistent ambiguities as to the construction and justification of the liability for unjust enrichment; on the other hand, it raises the question of whether and to what extent the putative father’s claim for compensation is compatible with the best interests of the child and family peace. Dutch law, for example, rejects any claim for compensation arising from a contestation of fatherhood.

Misbruik Van Omstandigheden Sebagai Dasar Pembatalan Akta Pengikatan Jual Beli

Indonesia has legal regulations which are the result of a combination with Dutch law, one of which is civil law in Indonesia which is regulated in the Civil Code or the Civil Code. Over time, legal developments have undergone significant changes following the needs of today's society, one of which is the addition of misbruik van omstandigheden or abuse of circumstances as a new form of handicapped will in the Netherlands, on the other hand, the Indonesian Civil Code has not been added to the Civil Code, but in its implementation, many judges have used the doctrine of abuse of circumstances in deciding a case in court. This research will further discuss the terms of abuse of circumstances based on the study of the decision. The research method used in this study uses a qualitative analysis method with literature study and is a type and type of normative juridical research carried out by examining existing legal norms through library research with the aim of further analyzing the requirements of misbruik van omstandigheden. Based on the results of the research, it can be concluded that the decision of the Mataram District Court Number 234/Pdt.G/2020/PN Mtr has fulfilled the conditions for misuse of circumstances.

Presumptions of Law Concerning Causality in Environmental Cases: Towards Collective Presumptions of Fact?

Abstract Presumptions of law are an appealing concept to remedy situations of causal uncertainty. In many pieces of EU legislation in various areas such as competition law, AI law and environmental law, presumptions are presented as a solution for plaintiffs that encounter problems regarding causal uncertainty in their compensation claims. Oftentimes, however, insufficient attention is paid to the possible risks of over- and under-compensation, the available alternatives and the functionality of these presumptions. In this article, I argue that a presumption of law fulfils two functions. First, this paper aims to address situations of evidentiary deficiency (individual goal). Second, it aims to facilitate the procedural road to compensation in cases of mass harm (collective goal). A comparative analysis of Belgian, Dutch and French law reveals that there are many ways to shape a presumption and its consequences. In conclusion, I argue that presumptions should always be tailored to a certain case and should attempt to reconcile the collective goal with the individual goal. To that end, policy-makers should aim to create collective presumptions of fact, based on the statistical evidence in a certain mass harm case, as opposed to presumptions of law.

PEMBAGIAN HARTA BERSAMA PASCA PERCERAIAN PASANGAN BERBEDA KEWARGANEGARAAN: PERBANDINGAN HUKUM INDONESIA DAN BELANDA

This study examines the separation of marital property after divorce between mixed married couples. It compares Indonesian and Dutch laws on the division of matrimonial property upon divorce, focusing the case of Henk Willem van Der Spil (a Dutch citizen) and Dyah Supriyantini (an Indonesian citizen). The study shows how the two legal systems are alike and different The research type is normative and descriptive, utilizing secondary data, qualitative analysis, and a comparative legal approach with deductive conclusions. The findings display similarities: 1) Research considers the division of shared belongings among couples in mixed marriages according to the HPI factors; 2) Both the Indonesian and Dutch HPI designate Indonesian law as applicable. The variations include: 1) Under Indonesian law, land and buildings are not counted as community property, whereas Dutch law regards them as such and divides them equally. 2) Indonesian law excludes the income of the Tulips Hotel and Resto from community property, while Dutch law includes it. 3) The Dutch law recognizes "divorce covenant," a concept that is not present in Indonesian law. Recommendations: to achieve fairness, judges should. consider international civil law and foreign law aspects when dividing property in joint ownership between mixed marriage couples.

Regulating police use of facial recognition technology in the Netherlands: The complex interplay between criminal procedural law and data protection law

In this contribution, we provide insight into the complex interplay between criminal procedure law and data protection law when it comes to regulating police use of facial recognition technology. By analysing the Dutch ‘Police Deployment Framework for Facial Recognition Technology’, we show that data protection law and criminal procedure do not interact with each other to a sufficient degree in relation to facial recognition technology. We identify several barriers standing in the way of their cooperation, resulting in notable gaps in the system of checks and balances: (1) a different underlying mindset (maximum versus minimum use of data); (2) a different assessment of the required legal basis (proportionality versus strict necessity); and (3) an ineffective web of supervision. We suggest several ideas for filling these gaps and bridging the disconnection: following the approach in existing Dutch law used for the processing of ANPR and DNA data, encoding the less ‘muddy’ rules of data protection law into digital technology itself, and further research on the feasibility of effective supervision by the Dutch Data Protection Authority. Our contribution shows that in order to properly regulate facial recognition technology, scholars need to look beyond the edges of their own fields of law.

Continuous deep sedation at the end of life: a qualitative interview-study among health care providers on an evolving practice

BackgroundContinuous deep sedation (CDS) can be used for patients at the end of life who suffer intolerably from severe symptoms that cannot be relieved otherwise. In the Netherlands, the use of CDS is guided by an national guideline since 2005. The percentage of patients for whom CDS is used increased from 8% of all patients who died in 2005 to 18% in 2015. The aim of this study is to explore potential causes of the rise in the use of CDS in the Netherlands according to health care providers who have been participating in this practice.MethodsSemi-structured interviews were conducted and thematically analysed. Participants were Dutch health care providers (HCPs), working at patients’ homes, hospices, elderly care facilities and in hospitals and experienced in providing CDS, who were recruited via purposeful sampling.Results41 Health care providers participated in an interview. For these HCPs the reason to start CDS is often a combination of symptoms resulting in a refractory state. HCPs indicated that symptoms of non-physical origin are increasingly important in the decision to start CDS. Most HCPs felt that suffering at the end of life is less tolerated by patients, their relatives, and sometimes by HCPs; they report more requests to relieve suffering by using CDS. Some HCPs in our study have experienced increasing pressure to perform CDS. Some HCPs stated that they more often used intermittent sedation, sometimes resulting in CDS.ConclusionsThis study provides insight into how participating HCPs perceive that their practice of CDS changed over time. The combination of a broader interpretation of refractory suffering by HCPs and a decreased tolerance of suffering at the end of life by patients, their relatives and HCPs, may have led to a lower threshold to start CDS.Trial registrationThe Research Ethics Committee of University Medical Center Utrecht assessed that the study was exempt from ethical review according to Dutch law (Protocol number 19–435/C).

Judging Climate Change

Since global and national political efforts to tackle climate change are failing, climate change litigation is on the rise worldwide. In climate change litigation, claimants try to legally advance climate protection in manifold ways. In particular, strategic, rights-based climate change litigation is becoming more common in which claimants use a human rights-based approach in their attempt to advance social change. While a rights-based claim filed by Urgenda in the Netherlands succeeded, a similar Swiss case brought by KlimaSeniorinnen Schweiz, failed. Why did the two cases have different outcomes despite the similarity of the cases and the countries? This paper seeks an answer by comparing the legal and political systems of the countries as well as by conducting expert interviews. In sum, the Urgenda and KlimaSeniorinnen cases differed because Dutch law has more generous procedural rules about the admissibility of claims than Swiss law. Furthermore, the Swiss highest court is more hesitant to engage in politically controversial questions compared to the Dutch highest court.

The Development of the Board Observer in Dutch Companies

In this article, the author addresses the development of the board observer in Dutch companies. The board observer is a relatively new phenomenon in the Dutch context (unlike Anglo-Saxon jurisdictions). In recent years, an increase has been noted in the Netherlands in the use of board observers. Basically, the board observer is a person who, as an agent and on behalf of an investor (most of the time), attends and observes board meetings and therefore receives a significant amount of information that is useful for the investor to stay up to date about the financial and operational health of the portfolio company. The author describes the motives to make use of an observer, both from the perspective of the investor and the (board of the) company. Also, the position of a board observer within the corporate governance of the company is discussed, as well as issues of confidentiality. Finally, the author addresses different authorities that can be granted to the board observer. For lawyers and other legal practitioners, it might be useful to advocate for detailed, contractual arrangements, since the board observer has no legal basis in Dutch law. Board observer, corporate governance, Johannesburg Stock Exchange, investors, information rights, confidentiality, authorities, contracts, private equity, venture capital, advisory rights

Examining the treatment gap between expert and semi-expert patients in obstetrics using a difference-in-differences approach

ABSTRACT Using detailed patient-level data, we show that patients who enjoyed relevant medical training (physicians and midwives) are 3.1 percentage points less likely to receive a C-section than semi-expert patients (nurses and physiotherapists). We examined whether this treatment gap diminishes after a Dutch law reform that aimed to (1) strengthen patients’ position in health care processes and (2) increase quality of care through more openness about clinical decisions and learning from medical incidents. We hypothesize that prescriptions of the law, such as more internal debates about appropriate treatment and improved communication of clinical decisions and potential complications during consultations, are expected to make semi-expert patients more informed. Exploiting the reform in a difference-in-differences approach, in which semi-expert patients constitute the treatment group and expert patients the control group, we show that the likelihood of semi-expert patients receiving a C-section after the reform is eight percentage points lower than the changes in C-section rates among expert patients. Given that the reform especially impacted the information level of semi-experts, these findings seem to support the idea that the treatment gap is driven, at least to some extent, by agency discrimination.

Nationwide implementation of personalized outcomes forecasts to support physical therapists in treating patients with intermittent claudication: Protocol for an interrupted time series study.

Shared decision-making is the cornerstone of patient-centered care. However, evidence suggests that the application of shared decision-making in physical therapy practice is limited. To elicit shared decision-making and thereby potentially improve patient outcomes for patients with intermittent claudication, we developed a decision support system. This decision support system provides personalized outcomes forecasts that visualize the estimated walking distance of an individual patient. We hypothesize that personalized outcomes forecasts can support physical therapists in personalizing care to the needs and priorities of the individual patient to improve therapy outcomes. The primary aim is to evaluate the impact of personalized outcomes forecasts for patients with intermittent claudication to optimize personalized treatment. Second, this study aims to evaluate the process of implementation. This study uses a prospective interrupted time series (ITS) design. Participating physical therapists are divided into four clusters. Every month of the study period, a new cluster will be invited to begin using the decision support system. We aim to include data of 11,250 newly referred patients for physical therapy treatment. All therapists associated with a network of specialized therapists (Chronic CareNet) and patients treated by these therapists are eligible to participate. The decision support system, called the KomPas, makes use of personalized outcomes forecasts, which visualize the estimated outcome of supervised exercise therapy for an individual patient with intermittent claudication. Personalized outcomes forecasts are developed using a neighbors-based approach that selects patients similar to the index patient (a.k.a. neighbors) from a large database. Outcomes to evaluate impact of implementation are patients' functional and maximal walking distance, quality of life and shared decision-making. Process evaluation will be measured in terms of utilization efficacy, including the outcomes dropout rate and reasons to (not) use the personalized outcomes forecasts. Data will be routinely collected through two online systems: the Chronic CareNet Quality system, and the website logs of the decision support system. Additionally, observations and semi-structured interviews will be conducted with a small subset of therapists. Formal medical ethical approval by the Medical Research Ethics Committees United 'MEC-U' was not required for this study under Dutch law (reference number 2020-6250).

Social Entrepreneurship: The Choice Between Labels, Variants, Dedicated and Conventional Corporate Forms

Abstract 85 Around the globe legislators have created labels and dedicated company forms for social enterprises. On the basis of an analysis of US, UK, German, French, Dutch and Belgian law, this article exposes which elements are important (and which are not) in the creation of these labels and forms. First, the distinction between labels and dedicated forms is of relative practical importance. Even dedicated company forms are – like labels – to a large extent governed by general corporate law. This offers advantages in terms of network effects and easy adoption. Creating a completely new corporate form is therefore justified only if there are compelling reasons for a comprehensive overhaul of existing company law. Second, the introduction of labels and dedicated company forms is influenced by the level of stringency with which jurisdictions distinguish between companies and nonprofit forms. For instance, the American benefit corporations and the French ‘raison d’être’ were introduced to explicitly authorize what conventional companies can do elsewhere. Nevertheless, a high degree of flexibility in conventional company law is insufficient to facilitate social entrepreneurship. Mandatory law for social enterprise labels or forms is necessary to credibly signal commitment to a social purpose. Yet, creating labels or dedicated forms for lightly regulated ‘mission purposes’ may generate noise that interferes with this signal. 86

Identitas Jawara Banten Tak Lekang Dimakan Zaman di Era Globalisasi dan Modernisasi ( Studi Kasus Jawara di Desa Terumbu, Kec. Kasemen Kota Serang )

One of the timeless cultural heritages is the designation of the word jawara. The purpose of study is to analyze the context of a champion in the era of globalization and modernization whose existence is still recognized, mainly related to someone who has martial arts skill or is also called a martial arts expert. Interaction theory by Pierre Felix Bourdiou is used in this study and interprets the term champion to describe martial arts experts either to protect themselves or to defend the weak as a result of oppression by the authorities. Qualitative description is a tool for analyzing this research either from the direct recognition of the winner in the currentsituation or the events and actions of the champion in the past. Using several analyzes, namely interviews with several martial arts figures, description of whereabouts and the image of the current champion. The existence of a champion in the midst of society communication events and communication actions. This study concludes that the existence of the jawara was formed when the sultanace of banten was founded which continued until the dutch colonial era, the dutch even labeled the jawara as a bandit who disrupted security and was labeled negatively because he was synonymous with acts of violence and deviated from dutch colonial law. The term jawara is a cultural subculture of the Indonesia nation and is a means of communicating nasional identity

Birth of a virtual community: Supporting Turkish couples' migration duringCOVID‐19

AbstractObjectiveThis research aimed to understand legal and bureaucratic intricacies couples from Turkey and the Netherlands had to face in their marriage migration processes during the COVID‐19 pandemic by analyzing the role of a virtual community in developing coping strategies of multiple agents (partners, as well as lawyers and moderators as third parties).BackgroundThe restrictive requirements for family migration in the Netherlands, which reflect a nation‐state–centered point of view, had consequences on the marriage migration of Turks.MethodsLegal and policy analysis between the years 2004 and 2021 and a netnography covering March 2021 through April 2022 are used. Dutch and EU case law analysis, participant observation in the Facebook group “Hollanda Aile Birleşimi/Gezinshereniging” (The Netherlands Family Reunification), and semistructured interviews with the members of the group are employed.ResultsThe interactions in the Facebook group went beyond simple information dissemination and led to the emergence of a virtual community. It served for the development of intimacy and informal expertise and constituted a venue for developing strategies to cope with bureaucratic, legal, and personal hurdles.ConclusionDuring COVID‐19, the virtual community enabled individuals involved in marriage migration to counter the legal and policy framework.

Gierigheid is die wortel van alle kwaad

Gierigheid is die wortel van alle kwaad

The T4 Memorial for Patients Killed by their Doctors: A Personal View

This is the story of the murder, by psychiatrists, of patients with genetically based psychiatric disorders in Nazi Germany. It is told from the viewpoint of a person with bipolar disorder, reflecting on the suffering of people like herself. The various stages in the so-called “Euthanasia” programme are mentioned: sterilisation, forbidding marriage, gassing, poisoning, starvation. This dark page of German Psychiatry is lightened up by: Its contrast with the author’s experience of compassionate and professional psychiatric therapy today. The inspiring sermons of the Bishop of Munster in 1941 leading to protests among patients and their families, the largest protest movement in Nazi Germany. The informative and uplifting group of monuments in Berlin commemorating the victims. The speech by the chairman of the German association of psychiatrists in 2010 asking for the victims to forgive them. The incorrect use of the term ‘Euthanasia’ for the memorial and its correct use in a humane Dutch law, passed in 2002.

Article: The Hague District Court’s Judgment in the ‘Climate Case of the Century’: How a Dutch Court Fell Through the Cellar Hatch (Part 1)

To protect the inhabitants of The Netherlands against ‘dangerous climate change’, the Hague District Court (the ‘Court’) in the ‘climate case of the century’ (Milieudefensie v. Shell, 2021) resorted to paradoxical lex ferenda interpretations of Dutch tort law. The court found binding ‘unwritten’ corporate norms in documentation without any legal status, while it acknowledged that the corresponding multitude of demanding ‘written’ (i.e., statutory) norms are nonbinding, do not apply to private entities, and do not reflect custom. In dictating corporate climate policymaking, the court rewrote Dutch tort law, ignored its limits, and expanded it in ways that are not consistent with the Dutch Supreme Court’s rulings. Based on the proposition that CO2 emissions cause ‘dangerous’ climate change, which is not a term used by the Intergovernmental Panel on Climate Change (IPCC), the judgment is a lengthy, but in the end circular argument: there is a duty of care because emission cause danger, and emissions cause danger because there is a duty of care. Milieudefensie’s case was built chiefly on a Dutch tort law case known as the ‘Cellar Hatch’ case. In the Cellar Hatch case, the Dutch Supreme Court first articulated the endangerment doctrine that resembles Learned Hand’s negligence calculus. In Milieudefensie v. Shell, the Hague District Court applied the endangerment doctrine, but constructed a climatespecific version. To enforce the urgent CO2 emission reductions deemed scientifically necessary, the Court circumvented the logical consequences of the applying the Cellar Hatch’s endangerment doctrine by referring to human rights, consensus and the concept of ‘partial responsibility’. The judgment does not fit into the system of Dutch civil law, and reasons away all barriers to imposition of the remedy sought by Milieudefensie, including causation requirements. With the Court’s moral reconstruction of the endangerment doctrine to ‘save the planet’, the Court opened the hatch, and fell into the dark cellar, along with the entire body of Dutch tort law, democracy, the rule of law, the rights and interests of citizens and the economy. In short, based on court-made ‘unwritten’ law, the Court concocted a result-oriented mix of science, law and expanded ‘soft laws’ to find an unlawful act without duly considering its plausible lawfulness and justification, entertained a vague, multi-faceted concept of climate-related damage without carefully examining its coherence, and constructed a causal link between the act and the damage based on the act’s presumed unlawfulness. Ironically, given the way markets work, the court’s judgment may well increase CO2 emissions, and thus not have any favourable effect on the climate, but it will restrict citizen’s rights to participate in public affairs and impose a potentially large burden on the economy. Endorsing perceived consensus around a moral imperative to reduce emissions, the Court did not confirm, but merely assumed the effectiveness of the remedy and ignored its multiple adverse consequences. The reality is that to comply with the court order, in 2030, Shell could simply spin off its fossil fuel business. Regrettably, the court disposed of virtually the complete body of Dutch law to secure a pyrrhic victory for the climate movement that is likely to harm the environment. This article is published in two parts. This is part 1. Part 2 will be published in the next issue of European Energy and Environmental Law Review. Milieudefensie v. Shell, climate change, climate litigation, civil liability, tort law, customary law, duty of care, causation, public-private law interface, concept of damage, trias politica, interest balancing, legal culture

Legal Aspects of the EncroChat Operation: A Human Rights Perspective

Abstract In the EncroChat operation, French law enforcement authorities collected over 120 million messages from 60.000 EncroChat users. They cooperated with Dutch law enforcement authorities and Europol in a Joint Investigation Team. In the Netherlands, EncroChat data has already been used in over 200 criminal cases. This article examines what lessons can be learned from the Dutch experience with the EncroChat operation from a human rights perspective, in particular the right to a fair trial.

The Flourishing Camel Milk Market and Concerns about Animal Welfare and Legislation

The worldwide dromedary milk production has increased sharply since the beginning of this century due to prolonged shelf life, improved food-safety and perceived health benefits. Scientific confirmation of health claims will expand the market of dromedary milk further. As a result, more and more dromedaries will be bred for one purpose only: the highest possible milk production. However, intensive dromedary farming systems have consequences for animal welfare and may lead to genetic changes. Tighter regulations will be implemented to restrict commercialization of raw milk. Protocols controlling welfare of dromedaries and gene databases of milk-dromedaries will prevent negative consequences of intensive farming. In countries where dromedaries have only recently been introduced as production animal, legislators have limited expertise on this species. This is exemplified by an assessment on behalf of the Dutch government, recommending prohibiting keeping this species from 2024 onwards because the dromedary was deemed to be insufficiently domesticated. Implementation of this recommendation in Dutch law would have devastating effects on existing dromedary farms and could also pave the way for adopting similar measures in other European countries. In this paper it is shown that the Dutch assessment lacks scientific rigor. Awareness of breeders and legislators for the increasing knowledge about dromedaries and their products would strengthen the position of dromedaries as one of the most adapted and sustainable animals.

Should the Dutch Law on Euthanasia Be Expanded to Include Children?

The 2002 Dutch Euthanasia law applies to patients aged 12 years and older. Developments in end-of-life care and decision-making in the last decade have sparked the debate about usefulness and necessity to extend euthanasia to include children under 12 years of age. This paper describes two opposite positions: the affirmative position of a pediatrician and expert in pediatric palliative care and the negative position of a jurist and specialist in health law.

First 12-month follow-up of bioresorbable synthetic heart valves implanted in the aortic position in sheep

Abstract Background Replacement of diseased heart valves with the currently available valve prostheses has serious drawbacks. The use of bioresorbable synthetic “in situ tissue engineered” heart valve prostheses has been proposed to overcome the limitations of traditional heart valve prostheses. Such bioresorbable synthetic heart valve prostheses have been successfully tested as pulmonary valve replacements in preclinical studies, but data on aortic valve replacement is lacking. Here, we present the first in-vivo study on the long-term functionality of bioresorbable synthetic heart valves in the high-pressure circulation. Methods Approval for the animal studies was obtained by the Amsterdam University Medical Centres Animal Care Ethics Committee (AVD1180020197705) and are in agreement with the current Dutch law on animal experiments (WOD). We surgically implanted bioresorbable synthetic aortic valve prostheses in 20 female Swifter sheep in orthotopic position. The scheduled follow-up times were 1, 3, 6, 9 and 12 months. Results Fifteen sheep (75%) recovered well from the surgical valve implantation procedure and were included in this analysis. No sheep died due to valve failure. All valves remained free from active infectious endocarditis, thrombotic complications, and pathological calcification. A total of 10 valves (67%) were intact, thin and pliable and remained free from leaflet thickening, retraction and degradation up to 12 months after implantation. In most valves (67%), the scaffold remained sparsely- or unpopulated by cells during 12 months follow up. In some valves (33%), colonization of the valve scaffold was observed, however this was most often associated with partial degradation of the leaflet and leaflet thickening. In general, the degradation of the scaffold fibres was limited throughout the follow-up period. Conclusion We are the first to evaluate in vivo bioresorbable synthetic heart valves in aortic position. While valves remained functional, the study also serves as a starting point to further optimize scaffold and neotissue development for heart valve replacement in the high-pressure environment. Funding Acknowledgement Type of funding sources: Public grant(s) – National budget only. Main funding source(s): 1. Cardiovasculair Onderzoek Nederland (grant number CVON2012-01)2. Netherlands Organization for Scientific Research (024.003.013)