Friday, December 2, 2011

Special focus on tort law in the Netherlands, part 1 of 2

Dutch tort Law
(Image by Jonathunder). 
We have seen in another article on this blog that the Netherlands might be amongst the best places in the European Union to sue climate polluters. For this reason, we investigate in more detail the Dutch legal system in a view of climate change litigation / climate damage compensation cases. We base this investigation on two complementary publications available in English. The first one is:

“Corporate Human Rights Violations: The Feasibility of Civil Recourse in the Netherlands” by Nicola M.C.P. Jägers and Marie-José van der Heijden, available at: http://ssrn.com/abstract=1351768

Forum: In Dutch law, the Common Law principle of “forum non convenience” does not apply (849-850). Instead the Dutch law is, like the law of all other EU Member States, dominated by the applicable EU law. Under article 2(1) of the EU Regulation EC/44/2001, “persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State.” The authors further write: “What is to be understood as an individual’s domicile is provided for in article 60(1), which states that ‘a company or other legal person or association of natural or legal persons is domiciled at the place where it has its (a) statutory seat, or (b) central administration, or (c) principal place of business is a broad formulation that allows for multiple fora.’ ... in other words, regardless of the place of headquarters, if a corporation, pursuant to its articles of association, is incorporated under the laws of the Netherlands, it will be subject to the jurisdiction of Dutch courts.” (845) Furthermore, the authors state that, according to article 5(3) of the EU Regulation EC/44/2001 “in matters relating to tort delicts” the plaintiff may sue “in the courts for the place where the harmful event occurred or may occur.” (846)

Applicable law: In the original Dutch law, the applicable law is, according to Article 3(2) of the Conflictenrecht Onrechtmatige Daad, the law where the effect is felt; but the parties can decide otherwise (851). However, the EU Regulation EC/864/2007 (“Rome II”), as all directly applicable EU law, prevails on the original Dutch law. According to Rome II, the law of the place where the damage occurred is applicable, but the law of the state in which the event giving rise to the damage occurred may be chosen by the victim.

Basic rules of tort law: A6:162 of the Dutch Civil Code, provides:
  1. A person who commits an unlawful act towards another which can be imputed to him, must repair the damage which the other person suffers as a consequence thereof.
  2. Except where there is a ground of justification, the following acts are deemed to be unlawful: the violation of a right, an act or omission violating a statutory duty or a rule of unwritten law pertaining to proper social conduct.
  3. An unlawful act can be imputed to its author if it results from his fault or from a cause for which he is answerable according to law or common opinion.
The authors draw the following conclusions: “In other words, under Dutch tort law, a tort is committed when (1) an act or omission violates a statutory duty, (2) a right is violated, or (3) an act or omission violates a rule of unwritten duty of care.” (855)

Content of compensation: The Dutch law does only cover compensatory damage, but does not include punitive damages like in the U.S. (861).

Liability for daughter companies: There is a possibility to make parent companies liable for tort of daughter companies (840-843).

Costs of the legal procedure: The Dutch law applies the “the loser pays principle”, see articles 237 to 245 of the Wetboek van Strafvordering – Dutch Code of Criminal Procedure (860). N.B.: We will see below that the loser does not necessarily have to pay the entire costs of the adversary.

Legal aid: Legal aid is provided in cases where the income of the plaintiff is not sufficient, and this in accordance with article 34 of the “Wet op de Rechtsbijstand” – Bill on Legal Aid, Stb. 1993, 775 (860, Footnote 102).

Lawyers' culture: Unlike in the U.S., there is no culture of volunteering work of lawyers (860-861).

Organizations' possibility to sue on behalf of environmental law victims: “305a of the Dutch Civil Code provides that an organization may bring a claim on behalf of people whose interests have allegedly been harmed, provided that the organization represents those interests. Burgerlijk Wetboek [BW] [Civil Code] art. 3:305a (Neth.). This article, however, does not address claims seeking monetary compensation.” (861, Footnote 104)

Class actions: There are no proper class action mechanisms; each case is individually assessed (861). However, there is a mechanism to extend the applicability of a judgment can be extended to other plaintiffs whilst these may opt-out, see the Dutch Civil Code articles 7:907–10 and the Dutch Code on Civil Procedure articles 14:1013–18.

Conditions for the applicability of international law: The Dutch law recognizes international law as a basis for stating tort. However, the respective international law must provide for a direct and a horizontal effect (855).

The Dutch Civil Code is available here: http://www.dutchcivillaw.com

Update Dec. 9, 2011: part 2 continued here

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