C.H. van Rhee

The Supreme Cassation Court of the Netherlands: Efficient Engineer for the Unity and Development of the Law

The Dutch Supreme Cassation Court was established in 1838 within the context of the French cassation tradition. From its inception important improvements were implemented when compared to the French model, for example the rule that cassation appeal would be allowed only one time in any single case, and that the cassation court would be able to provide a final judgment itself if the facts of the case did not need further inquiry. Since the 1980s supreme court litigation and practices have changed significantly. There were two main drivers for reform. The first was the need to diminish the Supreme Court’s workload. The second concerned the changing views on the role of the Supreme Court. Presently, the Court’s function of promoting the development of the law is emphasized. Five measures have been implemented to enable the efficient allocation of the Court’s resources and to enhance the Court’s ability to promote the further development of the law: the Court may decide relatively simple cases by a panel of three rather than five judges; the Court may dismiss cases without giving reasons for its decision; the Court may dismiss cases at a very early stage in the proceedings (selection at the gate); a specialized Supreme Court Bar was introduced; and lower courts may ask the Supreme Court to give a preliminary ruling on legal questions.

Civil justice in pursuit of efficiency

This chapter addresses first of all the goals of civil justice that are recognised in the Netherlands. These are (a) the authoritative determination of rights recognised by private law and the provision of enforceable titles; (b) demonstrating the effectiveness of private law; and (c) the development of private law and guaranteeing its uniform application. Subsequently the following issues are discussed with regard to the Netherlands: (1) matters within the scope of civil justice, (2) the emphasis on the protection of individual rights in civil litigation, (3) the quest for a certain balance between a decision based on a sound factual basis and speed and efficiency in reaching this decision, (4) access to court, (5) proportionality between case and procedure, (6) multi-party litigation, (7) the absence of strict formalism, (8) case processing instead of problem solving, (9) the costs of litigation and (10) user orientation.

Effects in time of judgments in the Netherlands: prospective overruling and related techniques

In the Netherlands, the established rule is that there is no system of precedent even though especially the judgments of the Dutch Supreme Court and the other highest courts are very authoritative and persuasive. Nevertheless, lower judges and the four highest courts are in principle not bound by previous judicial decisions. As regards court cases, the declaratory theory is formally adhered to: the judge does not create new law, but states the law as it is. As a result, court rulings are, as a general rule, relevant retrospectively.

The Role of the Judge and the Parties in Civil Litigation in China and Europe: An Introduction

Organising the administration of justice before the civil courts in an adequate manner is a complicated task. First, there are the legitimate claims of thoroughness and high quality in the adjudication of civil matters that need to be taken into consideration, since these guarantee a just outcome of the civil lawsuit and finally the observance of the rule of law in a given jurisdiction. At the same time efficiency, timeliness and costs are central issues. Unfortunately, thoroughness and high quality do not necessarily go hand in hand with efficiency, timeliness and low costs and, therefore, it is the task of the lawmaker, the Judiciary and also the parties and their counsel to balance the various interests involved in the civil action.

The Netherlands: A No-Nonsense Approach to Civil Procedure Reform

In the Netherlands, significant changes to the procedural regulations and other policy reforms have thoroughly reshaped the legal system over the past decades. Much more attention than before is directed to gathering data and to conducting empirical research in order to assess some of these changes. The role of the judge regarding case management seems to be of greater significance today than in the early 1990s. Judges have the authority to control the progress of lawsuits. It is now common for judges to schedule oral hearings at an early point in time at which the judge will order the parties themselves to appear in court in order to discuss the case. In the Dutch legal system, some preliminary steps have also been taken to promote mediation.