Litigation

The renewed Code of Civil Procedure came into force in 2002, the same year as the Brussels I Regulation and the Insolvency Regulation.

The principle of fair trial and the prevention of an unanticipated decision by the court are elementary components of Dutch procedural law. The parties must be able to take account of a specific opinion of the court.

The parties must be able to argue their case and only in exceptional cases may the court refuse arguments.
Another important fundamental principle is the requirement of reasoning. It must be possible to review the court's decision, the court's reasoning must be clear.

The law of evidence forms a separate part of procedural law. The general rule is that the party making the claim or statement, has to prove it (Art. 150 of the Code of Civil Procedure), but it is possible that the court will presume that a person has satisfied this burden of proof and then it is up to the other party to provide proof to the contrary. There can also be a reversal of the burden of proof. This situation can arise if an event has taken place that can logically ensue from a certain action. The contrary must then be proven.

The duty of disclosure has been further fleshed out in the new statute. In principle, one party can demand inspection of certain documents in the possession of the other party (Art. 843a Dutch Code of Civil Procedure), in order to be better able to prepare his case.

In the Netherlands the opinion of a court of first instance can be open to appeal. The Supreme Court is the highest court of the land. This court does not deal with facts, but points of law.

Attachment law is also part of civil procedure law. Before the court has made its final ruling, the party suffering the damage or loss can impose prejudgment attachment of property. After the court has decided in favour of that party, this attachment can be converted into an enforcement attachment. The Netherlands is an attachment country par excellence. Leave is given by the Preliminary Relief Judge and can be obtained in a fairly easy manner. On the other hand, capricious attachment can lead to liability on the part of the attaching party.