Arnold Van Steenderen, Van Steenderen Mainport Lawyers, Rotterdam
The judicial system in the Netherlands
The Netherlands is divided into eleven districts, each with its own court. These districts are made up of a maximum of five divisions, which always includes administrative law, civil law, criminal law and a sub-district law sector. Appeals against judgments rendered by the High Courts in civil and criminal law cases must be logged at the competent Court of Appeal. There are four Courts of Appeal in total. Appeals in cassation in civil, criminal and taxation matters must be logged at the Supreme Court of the Netherlands.
Civil law cases
Within the civil law division there is to a certain extent specialisation. Family and juvenile cases are handled by a separate team, insolvency and commercial matters are dealt with by separate teams. Most cases are decided by a single judge, but in more complicated cases full bench panels with three judges deal with the caseload.
Legislative proposal to concentrate shipping disputes in the Rotterdam High Court
The rules governing procedural law are to be found in a central Act of Parliament, the Dutch Code of Civil Procedure (“DCCP”). The DCCP does not contain provisions for particular civil courts (or divisions) specialised in certain areas of private law. Nevertheless a kind of specialisation has been brought about since legal proceedings in regard to international property law and certain aspects of corporate law can be brought before specialised Chambers. The High Court at The Hague has exclusive jurisdiction in all patent matters – first instance and appeal. Certain corporate law matters must be brought before the Corporate Chambers (“Ondernemingskamer”) of the High Court in Amsterdam.
Recently, the Dutch Ministry of Security and Justice presented a legislative proposal aiming at concentrating Dutch shipping disputes in the Rotterdam High Court. This legislative proposal gives effect to a longstanding wish within the judicial circles, since it is expected to positively contribute to the quality of the judiciary and the efficiency of the judicial process in shipping cases, and to the preservation and further development of knowledge and expertise in the Rotterdam High Court. Consequently, the concentration of shipping disputes is expected to be beneficial to the position of the Netherlands as a transport hub.
The proposal
Shipping law is one of the few areas in which legal concentration is considered desirable, according to the Assessment Framework of Legal Concentration of the Council for the Judiciary. The Assessment Framework provides for a set of circumstances in which legal concentration (i.e. attribution of additional or exclusive jurisdiction over certain cases to a specific court, in derogation of the above described ordinary jurisdiction rules) is desirable. According to aforementioned Assessment Framework legal concentration is desirable in the case a particular category of cases requires special judicial expertise.
Furthermore, at least one of the following criteria must be fulfilled.
Legal concentration is desirable:
- in the case only a limited number of cases of a specific category are heard annually;
- if in a specific area there is a high presence of partners involved in the same sector;
- for reasons of sound business management (i.e. in order to increase theefficiency of proceedings).
In shipping cases it comes to a highly specialised sector with mostly complex underlying matters. The Rotterdam High Court enjoys a robust reputation in this area, since it successfully combines legal and a substantive expertise in the field of shipping (law). This is confirmed by the fact that in shipping and trading contracts concluded between Dutch parties, a choice of forum clause giving exclusive jurisdiction to the Rotterdam High Court is regularly incorporated.
The legislative proposal to amend the DCCP mainly concerns the question which court has territorial jurisdiction over shipping cases in the Netherlands.
Based on the present rules laid down in the DCCP, jurisdiction over shipping cases is widespread throughout the eleven Dutch courts.
In order to concentrate shipping disputes in Rotterdam, the legislative proposal gives the Rotterdam High Court either additional or exclusive jurisdiction over specific shipping cases. The decisive factor to attribute either additional or exclusive jurisdiction to the Rotterdam High Court is based on the complexity of the specific case.
In relation hereto, it is important to mention that the provisions of the legislative proposal conferring either additional or exclusive jurisdiction to the Rotterdam High Court are solely intended as Dutch national law and without prejudice to European and international regulations and treaties, respectively.
Status of the proposal
The legislative proposal was published on 15 May 2015 and a consultation period was given until 26 June 2015, during which period representatives of the (inland) shipping law practice could comment on the content of the draft legislative proposal. The comments received will be taken into consideration in drafting the final legislative proposal. At the time of writing of this present article, the legislative proposal has not yet been submitted to Dutch Parliament, though we expect this to happen soon after the summer recess and once the comments received have been incorporated in the draft proposal.
Comments on the content of the draft legislative proposal
During the consultation period various associations and firms involved in the (inland) shipping law practice have shed their light on the draft proposal.
In this connection, the Dutch Association for Maritime and Transport Law (Nederlandse Vereniging voor Zee- en Vervoersrecht) has put forward a justified remark in commenting that within the Association the question has arisen as to why the legislative proposal is limited merely to the concentration of shipping disputes, whilst in other areas of the transportation law practice (in particular in regard to the carriage of goods) concentration of disputes in the Rotterdam High Court would also be desirable.
Another relevant comment has been made by representatives of the yachting industry, which have made a valid comment in respect of the jurisdiction of the Rotterdam High Court in cases concerning pleasure boats. Due to the in practice often unclear distinction between pleasure boats and commercial cruising vessels, it is considered desirable to attribute additional jurisdiction rather than exclusive jurisdiction to the Rotterdam High Court in cases involving pleasure boats. Also, the undesirable and onerous situation is addressed in which private owners of pleasure boats, residing at large distances from Rotterdam, are forced to address the Rotterdam High Court in the case of simple collisions with relatively minor damage.