Abstract
The Netherlands is an adherent to the Hague Conventions Relating to Civil Procedure of 19051 and 1954.2 In addition, it has entered into bilateral agreements relating to civil procedure with Belgium,3 Germany,4 and Great Britain.5 The Hague Conventions and the treaties with Belgium and Great Britain have been implemented by internal measures, regulating in further detail the procedures to be followed for obtaining and rendering assistance pursuant to the terms of the applicable treaty.6 However, no legislative or administrative measures of general import governing international co-operation in litigation have been adopted. In the absence of treaty, as a general ru 1e, the performance of procedural acts abroad is delineated by sundry statutory provisions, while the co-operation rendered in the performance of procedural acts in The Netherlands on behalf of foreign litigation is determined by uncodified rules patterned largely on provisions in the Hague Conventions regulating such assistance.
The authors gratefully acknowledge the kind comments and suggestions of the Honorable Miss L. Lagers of the Office of Legal Affairs of the Ministry of Foreign Affairs of The Netherlands.
LL.B. 1951, LL.M. 1955, University of Leyden ; M.C.L . 1958, Columbia University ; Member, Bar of the Supreme Court of The Netherlands.
LL.B . 1946, LL.M. 1949, University of Amsterdam; A.M. 1954, LL.B . 1958, Columbia University ; Member , Bar of th e Supreme Court of The Netherlands; Professor of Law, Columbia University ; Director, Columbia University Project on International Procedure.
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References
Convention relating to civil procedure of July 17, 1905, Staatsblad 1909, No. 120, ratified by Law of July 15, 1907, No. 197. The 1905 Convention has been ratified by Belgium, Dantzig, Germany, Estland, Finland, France, Hungary, Italy, Letland, Luxembourg, Norway, Austria, Poland, Portugal, Rumania, Russia, Spain, Czechoslovakia, South Slavia, Sweden, Switzerland, and The Netherlands. See Tractatenblad 1952, No. 70; 1956, Nos. 73 and 135; 1959, No. 177; 1963, No. 21. It continues in effect between the states that have not ratified the 1954 Convention. See also note 2 infra.
Convention relating to civil procedure of March 1, 1954, ratified by Law of December 24, 1958, Staatsblad 1958, No. 676. This convention has been ratified by Belgium, Denmark, Finland, France, West-Germany, Italy, Luxembourg, Norway, Austria, Poland, Sweden, Switzerland, Yugoslavia, and The Netherlands. It supersedes, as between these countries, the 1905 Convention. See Tractatenblad 1954, No. 40; 1959, Nos. 78 and 182; 1963, No. 23. See also note 1 supra.
Agreement between The Netherlands and Belgium concerning direct service of judicial and extrajudicial documents, Decree of March 16, 1938, Staatsblad 1938, No. 18.
Declaration The Netherlands-Germany in connection with the convention relating to civil procedure of 1905, Decree of August 14, 1909, Staatsblad 1909, No. 296.
Treaty between The Netherlands and Great Britain of May 31, 1932, containing provisions to facilitate the conduct of litigation in civil and commercial matters, ratified by Law of April 6, 1933, Staatsblad 1933, No. 137.
Law of June 12, 1909, Staatsblad 1909, No. 141, implementing the convention relating to civil procedure concluded in The Hague on July 17, 1905 [hereinafter cited as Statute Implementing 1905 Convention]; Law of April 6, 1933, Staatsblad 1933, No. 136, containing provisions for the implementation of the treaty, concluded in London on May 31, 1902, between The Netherlands and Great Britain and containing provisions for the facilitation of the conduct of litigation [hereinafter cited as Statute Implementing Treaty with Great Britain]; Law of December 24, 1958, Staatsblad 1958, No. 677, implementing the convention relating to civil procedure concluded in The Hague on March 1, 1954 [hereinafter cited as Statute Implementing 1954 Convention].
For provisions relating to the dagvaarding, see Code of Civil Procedure [hereinafter Code Civ. Pr.] arts. 1-5. On the dagvaarding generally, see also Star Busman, Hoofdstukken VAN Burgerlijke Rechtsvordering 145-52 (2d ed. 1955); 1 VAN Rossem-Cleveringa, Het Nederlandsch Wetboek VAN Burgerlijke Rechtsvordering 4-47 (3d. ed. 1934); Boneval Faure, Het Nederlandsch Burgerlijke Procesrecht 2-9 (1900); Coops, Grondtrekken VAN Het Nederlandsch Burgerlijk Procesrecht 48-53 (7th ed. Westerouen van Meeteren 1957); Hugenholtz, Hoofdlijnen VAN Nederlandsch Burgerlijk Procesrecht 59-69 (3d ed. 1941); VAN Den Düngen, VAN Staren & Jansen, Burgerlijke Rechtsvordering arts. 1-5 (looseleaf) [hereinafter VAN Den Dungen]. The books here cited are leading commentaries on the Netherlands Code of Civil Procedure.
A dagvaarding is a species of exploit. On service of exploiten, see Code Civ. Pr. arts. 4-5. A deurwaarder is a public official, appointed by the government, whose main task is to serve process and to function as official court attendant at court hearings. To qualify for appointment, the aspirant deurwaarder must pass an examination testing his legal knowledge and serve at least one year in an office of a deurwaarder. The deurwaarder charges for his services at rates prescribed by governmental decree. See generally Decree of December 27, 1960, Staatsblad 1960, No. 562, amending the Regulation on Process Servers.
For an example of a kennisgeving, see Code Civ. Pr. art. 907 (2) (served by registered mail).
The Code of Civil Procedure provides generally for service abroad. Code Civ. Pr. art 4(7) and (8). The competence of Netherlands courts never depends on whether the service is made in The Netherlands. Code Civ. Pr. arts. 126-127. See also Weser, Bases of Judicial Jurisdiction in the Common Market, 10 AM. J. Comp. L. 323, 326-27, 327-38 (1961).
On service in foreign countries generally, see Star Busman, op. cit. supra, note 7, at 148; 1 VAN Rossem-Cleveringa, op. cit. supra note 7, at 29-33.
Code Civ. Pr. art. 4(8) (1). If the document to be served does not relate to a pending proceeding, it must be delivered to the public prosecutor attached to the arrondissements-rechtbank — the court of first instance in most civil cases — of the plaintiff’s domicile. Code Civ. Pr. art. 4(8) (2). If the document relates to a case pending or to be initiated before a kantonrechter — the court of first instance in matters that are generally of limited pecuniary importance — it is delivered to the head of the local government who forwards it to the public prosecutor attached to the arrondissements-rechtbank of the same district for transmission to the addressee. Code Civ. Pr. art. 4(8) (3). On these methods of service, see generally Star Busman, op. cit. supra note 7, at 148. See also note 15 infra.
The deurwaarder returns the original to the person requesting the service and leaves a copy for each addressee as against whom the copy has the effect of the original. See text at note 101 infra.
Code. Civ. Pr. art. 4(8)(1). If the addressee is domiciled in one of the Netherlands overseas territories, the document is transmitted to the Ministry of Overseas Territories. Code Civ. Pr. 4(8)(1). See also Star Busman, op. cit. supra note 7, at 148.
Code Civ. Pr. art. 4(7)(2). A person who has no known domicile in The Netherlands is served at his Netherlands residence. Code Civ. Pr. art. 4(7)(1). It has been argued that, since the text of Article 4(8), on its face, deals only with the situation in which the defendant has a domicile abroad, service on a person who has no domicile anywhere and whose only known residence is abroad, must be made as prescribed in Article 4(7)(2). VAN Den Dungen, op. cit. supra note 7, at 27, 45. It would seem, however, that the procedure outlined in Article 4(8) (1) presupposes that the Ministry of Foreign Affairs will transmit the document to the addressee’s residence abroad and, as being less complicated and avoiding unnecessary publication costs, is preferable.
Code Civ. Pr. art. 4(7)(3).
This is nowhere provided explicitly, but follows from article 8 of the Code of Civil Procedure which provides that the day stated in the exploit — and article 5(1) of the Code of Civil Procedure requires that the exploit state the day of service — is not included in the time that must elapse between the day of service and the date for appearance specified.
The absence of statutory regulation of the transmission of the document to the addressee has been critized in foreign countries. To avoid this criticism, the statute implementing The Hague Convention of 1954 specifically instructs the Ministry of Foreign Affairs to forward the document to the Netherlands diplomatic or consular agent abroad who must transmit it to the foreign authority which will be requested to deliver the document to the addressee. Statute Implementing 1954 Convention, supra note 6, art. 5.
See, e.g.. Code Civ. Pr. art. 907(2) (notice of petition seeking provision for custody or guardianship of children); art. 971(5) (notice of adoption hearing). For an example of service by registered mail, return receipt requested, see Bankruptcy Law art. 6, Staatsblad 1893, No. 140, as amended, iuncto Decree of January 25, 1926, Staatsblad 1926, No. 14, art. 1(2) (notice of hearing on petition for bankruptcy).
Indeed, the implementing statutes provide that service in accordance with the conventions is effectuated by (1) serving the public prosecutor in accordance with the provisions of article 4(8) of the Code of Civil Procedure and by (2) meeting additonal requirements specified in the statutes. Statute Implementing 1905 Convention, supra note 6, arts. 4, 6; Statute Implementing 1954 Convention, supra note 6, arts. 4, 5. It is no wonder that litigants have preferrred the usual rather than the treaty method of making service. See Fendel v. van Dam & Co., Arrondissements-Rechtbank Rotterdam, January 8, 1913, Weekblad VAN Het Recht NO. 9495 (treaty provisions do not supersede the provisions of Article 4). See also De Moor, 1930 Nederlandsch Juristenblad 337.
The Hague Convention of 1905, supra note 1, art. 1(1); The Hague Convention of 1954, supru note 2, art. 1(1). Both conventions provide that each member state may require processing through diplomatic channels. Id. arts. 1(3).
Id. arts. 6.
Statute Implementing 1905 Convention, supra note 6, art. 4. See also note 20 supra.
Id. art. 6.
Statute Implementing 1954 Convention, supra note 6, arts. 4, 5.
Id. art. 4(2).
Id. art. 5.
Treaty with Great Britain, supra note 5, arts. 3-4; Statute Implementing Treaty with Great Britain, supra note 6, arts. 5-9.
Agreement with Belgium, supra note 3. Since this agreement purports to implement article 6 of The Hague Convention of 1905, it is not clear whether, now that both The Netherlands and Belgium have ratified the 1954 Convention (supra note 2), it is still in effect. Furthermore, since the agreement purports to implement article 6 of the 1905 Convention and that article does no more than provide that nothing shall prevent this type of direct service, it could well be argued that the agreement does not accomplish its objective inasmuch as it merely removes obstacles to a manner of service that is non-existent under Netherlands law.
Declaration The Netherlands-Germany, supra note 4.
See note 17 supra.
Code Civ. Pr. art. 5. This article also prescribes a number of additional requirements the dagvaarding must satisfy.
The copy has the effect of the original as against the addressee. Code Civ. Pr. art. 1(2). The original of a dagvaarding is filed with the court before which the addressee is summoned to appear. Coops-Westerouen VAN Meeteren, op. cit. supra note 7, at 52.
The proof is in the document in which the deurwaarder must state the date of delivery and the name of the person to whom delivery was made. See text at note 32 supra.
The Hague Convention of 1905, supra note 1, art. 5; The Hague Convention of 1954, supra note 2, art. 5; Treaty with Great Britain, supra note 5, art. 3 (g).
Since the service is made in accordance with article 4, paragraph 8, of the Code of Civil Procedure (see text at notes 23 and 28 supra) and under that article the service is complete upon delivery of the document to the public prosecutor (see text at notes 17 and 31 supra), the argument that service under the treaty is not complete until the proof of service provided for in article 3(g) of the treaty has been obtained would not seem appealing. Cf. also Statute Implementing Treaty with Great Britain, supra note 6, art. 9 (if the proof of service described in article 3 (g) of the treaty has not been received and the defendant fails to appear, the court, upon plaintiff’s request, may hold the case over for a future hearing rather than enter a default).
Code Civ. Pr. art. 92(1).
Code Civ. Pr. art. 94. To avoid application of this provision, the defendant who is desirous to have the dagvaarding declared invalid will ordinarily fail to appear; if a default judgment is entered against him, he may purge the default, have the judgment set aside, and the dagvaarding declared null, irrespective of whether the defect might have been found not prejudicial had he filed a timely appearance.
Code Civ. Pr. art. 95.
Code of Criminal Procedure [hereinafter Code Crim. Pr.] art. 585. On service in criminal matters generally, see 3 Blok & Besier, Het Nederlandsche Strafproces 239-41 (1926); Minkenhof, Nederlandsche Strafvordering 356-59 (1948); VAN Bemmelen, Strafvordering 539-44 (6th ed. 1957). The books here cited are the leading commentaries on Netherlands criminal procedure.
Code Crim. Pr. art. 586(1).
Code Crim. Pr. art. 586(2).
Code Crim. Pr. art. 587(1).
Code Crim. Pr. art. 587(3).
Ibid.
Code Crim. Pr. art. 587(2)
Ibid.
Code Crim. Pr. art. 587(7).
Code Crim. Pr. art. 587(5).
Code Crim. Pr. art. 589. On what manner of transmittal of the notice is sufficient, see 3 Blok & Besier, op. cit. supra note 40, at 249.
Code Crim. Pr. art. 587(6).
Code Crim. Pr. art. 588.
On the service of documents in fiscal matters, see, e.g., XI Vakstudie, Invordering annot. to art. 9 Invorderingswet of 1845 (as a rule, the procedure of Code Civ. Pr. art. 4(8) must be followed).
Netherlands civil procedure does not recognize a right to trial in the common law sense. As a rule, witnesses are heard only after the court, by interlocutory judgment, has found that proof is needed and has ordered that witnesses be heard. Code Civ. Pr. art. 199. See generally Star Busman, op. cit. supra note 7, at 254-62.
1 VAN Rossem-Cleveringa, op cit. supra note 7, at 224.
As a rule, when the foreign country does not object to the Netherlands consul’s taking the testimony, an instruction to the Netherlands consul to take the evidence will be the most efficient procedure. But cf. 1 VAN Rossem-Cleveringa, op. cit. supra note 7, at 224 (the court will act in accordance with the legislative intent by first requesting the assistance of a foreign authority). A request for assistance to a foreign authority may be desirable if the voluntary testimony of the witness is unlikely and the foreign authority will apply coercive measures. In the United States, the Netherlands consul may ask an American court to compel the witness to appear before him. See Smit, Italian AND American Procedures OF International CO-Operation IN Litigation: A Comparative Analysis 22 (New York 1962).
Code Civ. Pr. art. 119(3). 1 VAN Rossem-Cleveringa, op. cit. supra note 7, at 227.
Consequently, the request may be transmitted either directly from court to court or through the Netherlands consul or a foreign lawyer or in any other manner. See also Declaration The Netherlands-Germany, supra notes 4 and 30.
See note 56 supra.
Visser v. J.C.B., Hoge Raad (Burg. Kamer), June 28, 1935, 1936 Nederlandsche Jurisprudentie NO. 80. The sources from which a Netherlands court may derive proof are limited to (1) written evidence, (2) testimonial evidence, (3) presumptions (including inferences), (4) confessions, and (5) oaths. Civil Code art. 1903. The net effect of the Supreme Court’s decision was to withdraw the testimony obtained abroad from those items of proof on which the court could base its judgment. Nothing prevents a Netherlands court, however, from considering any kind of proof as long as in the reasoning that must support its judgment it states to have relied only on legal proof in the sense of article 1903 of the Civil Code.
The Hague Convention of 1905, supra note 1, arts. 9(1), 11(1); The Hague Convention of 1954, supra note 2, art. 9(1), 11(1); Treaty with Great Britain, supra note 5, arts. 7(c), 7(d).
The Hague Convention of 1905, supra note 1, art. 11 (3)(3); The Hague Convention of 1954, supra note 2, art. 11(3) (3); Treaty with Great Britain, supra note 5, art. 7(f)(2).
Declaration The Netherlands-Germany, supra note 4. See also note 58 supra.
Code of Commerce arts. 6,8.
Code of Commerce art. 8(2). According to this provision, the court may draw any inference it deems appropriate. See also Star Busman, op. cit. supra note 7, at 280-82.
This right is enforced by an ordinary action in the civil courts.
See Star Busman, op. cit. supra note 7, at 282-83.
Weisbard et alii v. de Ridder, Hoge Raad (Burgerlijke Kamer), May 20, 1921, Weekblad VAN Het Recht NO. 10776 (single copy of written agreement held common, within the meaning of article 1923 of the Civil Code, to both parties who executed it).
Star Busman, op. cit. supra note 7, at 283.
The United States is among the countries in which such assistance will ordinarily be available. See Smit & Miller, International CO-Operation IN Civil Litigation: A Report ON Practices AND Procedures Prevailing IN THE United States 22-25 (Milan 1961).
The Hague Convention of 1905, supra note 1, art. 8; The Hague Convention of 1954, supra note 2, art. 8.
Since a Netherlands civil court ordinarily cannot order the production of tangible evidence, it is unlikely that it will request this type of assistance. But see Meunerie Bruxelloise v. Segers, Arrondissements-Rechtbank Breda, March 26, 1918, 1918 Nederlandsche Jurisprudentie 824 (request to the Brussels Commercial court under article 8 of the 1905 Convention to attend to the production of books within the ambit of article 8 of the Code of Commerce).
Treaty with Great Britain, supra note 5, art. 6(b). However, as indicated in note 72 supra, a Netherlands court has not been given authority by the Code of Procedure to issue requests for assistance in the production of tangible evidence, and article 7(a) of the treaty provides that a court seeking assistance may request it by letters rogatory “in accordance with the provisions of its law” (emphasis supplied).
See, e.g., Convention between the United States of America and the Kingdom of The Netherlands for the extradition of criminals of June 2, 1887, 26 Statutes AT Large 1481 (51st Cong. 1889–91), art. 10.
Kosters & Dubbink, Algemeen Deel VAN Het Nederlandse Internationaal Privaatrecht 503 (1962). For an excellent discussion of proof of official records in The Netherlands, see Conférence DE LA Have DE Droit International Privé, Légalisation DES Actes Publics Etrangers, Exposé PAR Pays — Pays Bas (mimeo. 1959) [hereinafter Hague Conference Exposé].
Kosters & Dubbink, op. cit. supra note 75, at 506; Hague Conference Exposé, supra note 75, at 2.
As long as the court finds these documents convincing. See text at note 76 supra.
Kosters & Dubbink, op. cit. supra note 75, at 505-06.
Hague Conference Exposé, supra note 75, at 1-2.
Ibid.
Id. at 3-4.
See, e.g., Winkelman v. N.V. Dictator II, Hoge Raad (Burgerlijke Kamer), March 10, 1939, 1939 Nederlandsche Jurisprudentie NO. 919; de Lang v. Knoop, Hoge Raad (Burgerlijke Kamer), March 16, 1939, 1939 Nederlandsche Jurisprudentie NO. 1048.
See, e.g., Benima v. Jacob Rohner Aktiengesellschaft, Hoge Raad (Burgerlijke Kamer), April 8, 1927, 1927 Nederlandsche Jurisprudentie 1110; Plantenger v. J. A., Hoge Raad (Burgerlijke Kamer), March 20, 1931, 1931 Nederlandsche Jurisprudentie 890. See also Kosters & Dubbink, op. cit. supra note 75, at 733.
See cases cited note 83 supra; Kosters & Dubbink, op. cit. supra note 75, at 733-36. 85 Id, at 735-36.
See Kosters & Dubbink, op. cit. supra note 75, at 742-43, with references to other authors.
Article 13 of the Law of May 15, 1829, Staatsblad 1829, No. 28, as amended, containing general principles of the legislation of the Kingdom, provides that no court may refuse to adjudicate a controversy on the ground of silence, obscurity, or incompleteness of the law.
See cases cited note 83 supra.
On the ground that the statute providing for review grants authority to review only for improper application of a statute (wet), as distinguished from the law (recht), the term used in article 48 of the Code of Civil Procedure. See Veegens, Cassatie IN Burgerlijke Zaken 133 n. 5 (1959), citing leading decisions.
On this proposal, see Veegens, Cassatie IN Burgerlijke Zaken 132-34 (1959).
No provision of Netherlands law prohibits, either in terms or by implication, service in The Netherlands of documents issued in connection with foreign proceedings. Consequently, such service could be forbidden by the Netherlands government only insofar as it would involve foreign official action on its territory. See Smit, International Co-operation in Civil Litigation: Some Observations on the Roles of International Law and Reciprocity, 9 Neth. Int’l L. Rev. 137, 143-47 (1962). However, the Netherlands government does not object to any form of foreign service as long as it does not involve a breach of Netherlands criminal law or physical compulsion.
Netherlands attorneys and deurwaarders are not usually asked to make service on behalf of foreign proceedings, probably because such service can easily be effectuated without their intervention. See also note 94 infra.
On service in Netherlands civil proceedings generally, see 1 VAN Rossem-Cleveringa, op. cit. supra note 7, at 4-35; Star Busman, op. cit. supra note 7, at 145-51.
Code Civ. Pr. art. (1)1; Process Servers Regulation, supra note 8, art. 13(1) (a deurwaarder must render his assistance when requested).
Code Civ. Pr. art. 1(1).
Code Civ. Pr. art. 2.
Ibid.
Code Civ. P?. art. 4(3).
Code Civ. P?. arts. 5, 133.
The original of the dagvaarding is shown to the court when the case is first put on the calendar. Code Civ. Pr. 135(1); Coops-Westerouen VAN Meeteren, op. cit. supra note 7, at 52.
Code Civ. P?. art. 1(2).
process Servers Regulation, supra note 8, arts. 13-16. For each document served, the deurwaarder is entitled to ten Netherlands guilders (about % 3.00) plus reimbursement for travel varying from one Netherlands guilder to two guilders fifty for each five kilometers.
The Hague Convention of 1905, supra note 1, art. (1)1; Statute Implementing 1905 Convention, supra note 6, art. 1; The Hague Convention of 1954, supra note 2, art. 1(1); Statute Implementing 1954 Convention, supra note 6, art. 1; Treaty with Great Britain, supra note 5, art. 3(a), 3(d); Statute Implementing Treaty with Great Britain, supra note 6, arts. 2-3.
This is in accord with the treaty provisions which provide that, unless the requesting authority specifies a special manner of service, service may be effected by simple delivery. The Hague Convention of 1905, supra note 1, art. 2; The Hague Convention of 1954, supra note 2, at 2; Treaty with Great Britain, supra note 5, art. 3(e); Statute Implementing Treaty with Great Britain, supra note 6, art. 3.
por a description of the procedure followed by the deurwaarder, see text at notes 93-102 supra.
The Hague Convention of 1905, supra note 1, art. 3(1); The Hague Convention of 1954, supra note 2, art. 3(2); Treaty with Great Britain, supra note 5, art. 3(e); Statute Implementing Treaty with Great Britain, supra note 6, art. 3(2). As a rule, compliance with requests for a special manner of service will occur as a matter of course. Only manners of service that would involve an assault or a similar violation of Dutch law are barred.
The Hague Convention of 1905, supra note 1, art. 4; The Hague Convention of 1954, supra note 2, art. 4; Treaty with Great Britain, supra note 5, art. 3(f). For the argument that domestic sovereignty is not easily threatened by service of foreign documents, see Smit, supra note 91, at 146-47, 149-50.
The Hague Convention of 1905, supra note 1, art. 5; The Hague Convention of 1954, supra note 2, art. 5; Treaty with Great Britain, supra note 5, art. 3(g).
See, e.g., Kühne & Zonen v. Platt, Hoge Raad (Burgerlijke Kamer), November 14, 1924, 1924 Nederlandsche Jurisprudentie 91; C. v.d. S. v. Bannier, Hoge Raad (Burgerlijke Kamer), April 1, 1938, 1938 Nederlandsche Jurisprudentie NO. 989; On the first decision, rendered in the famous “fur coat” case, see also Kollewijn, American-Dutch International Law 37-38 (2d ed. 1961).
Kosters & Dubbink, op. tit. supra note 75, at 777-96.
Cf. Kosters & Dubbink, op. cit. supra note 75, at 830 (recognition may not be given in violation of Netherlands public policy; public policy requires that the judgment must have been rendered under the vigor of a reasonable system of procedure).
It is unclear why the Netherlands Government discriminates against administrative proceedings. Since no reasonable basis for discrimination appears to exist, a reversal in policy is desired.
This virtually unbridled freedom is limited only by espionage and other similar laws designed to protect internal security. See, e.g., Penal Code art. 98 (prohibiting disclosure of state secrets). One other limitation should here be mentioned. Article 39 of the Law on Economic Competition of June 28, 1956, Staatsblad 1956, No. 401, as amended, explicitly forbids — in the absence of dispensation by the Ministry of Economic Affairs and whatever other ministry is involved — wilful compliance with measures or decisions of a foreign state which relate to anti-competitive arrangements or conditions of the kind defined in the statute. There is little doubt that this provision prohibits voluntary production of any evidence, whether testimonial or tangible, pursuant to a foreign antitrust statute or official — including judicial — order in an antitrust case. On this provision, which was inspired by resentment against the decision in United States v. Imperial Chemical Industries, Ltd., 100 F. SUPP. 504 (S.D.N.Y. 1951), see also Smit, International Aspects of American and Netherlands Antitrust Legislation, 5 Neth. Int’l L. Rev. 274, 289 n. 110.
Netherlands lawyers and notaries are not usually asked to take testimony on behalf of foreign proceedings. However, they are free to comply with requests to that effect.
Netherlands law provides for an oath (“so help me God Almighty”) or affirmation (“I affirm” or “I declare”) to tell “the whole truth and nothing but the truth.” Law Form of Oath of July 17, 1911, 1911 Staatsblad NO. 215, art. 1.
Penal Code art. 207(1). Since no provision of Netherlands law requires or attaches consequences to an oath taken in that situation, the requirements of this provision are not met in the case described in the text.
See Mulder, Internationaal Privaatrecht 238 (2d rev. ed. 1947).
Code Civ. Pr. arts. 103-120, 199-203.
Kosters & Dubbink, op. cit. supra note 75, at 494.
There is one other procedure open to foreign litigants who desire to obtain testimonial evidence with official Netherlands assistance that should be mentioned. Under articles 876 through 881 of the Code of Civil Procedure, a person may, before an action has been initiated, petition the court to order the examination of specified witnesses. Only if the proposed action is one for divorce or separation or if an action is already pending need a showing be made that the examination is desirable to avoid the possible unavailability of the witness later. The petition is submitted to the arrondissements-rechtbank of the witness’ domicile or residence or, in the case of a pending action, to the court in which the action is pending. Upon granting the petition, the court designates a judge before whom the examination will be held. The usual measures of compulsion are available. No case involving recourse by foreign litigants to these provisions has been reported. Although the statutory language seems to anticipate the subsequent initiation of an action in The Netherlands, it does not make the availability of this pre-action procedure dependent on the commencement of subsequent litigation in The Netherlands. It would seem, therefore, that this procedure may be used even by foreign litigants who do not plan litigation in The Netherlands. See also Star Busman, op. cit. supra note 75, at 264-65.
See note 115 supra.
The judge ordinarily propounds the questions to the witness. If the parties wish to pose questions, they must ask the judge to put them to the witness. Code Civ. Pr. art. 109(2). In practice, the judge, after having concluded his examination, often permits counsel for the parties to pose additional questions directly to the witness.
Code Civ. Pr. art. 109(2). See also note 122 supra.
This is the procedure followed in practice. Code Civ. Pr. art. 111(1) provides that the clerk makes a record (proces-verbaal) of the testimony and that the testimony of witnesses must be recorded “in its entirety.”
Code Civ. Pr. art. 111(2) and 111(3).
Code Civ. Pr. art. 111(4).
As a rule, spouses and relatives by blood or marriage in ascending or descending line are incompetent witnesses. Civil Code art. 1947. The same is true of persons under fifteen years of age and persons who are feebleminded or insane and for whom a guardian has been appointed. Civil Code art. 1949.
Among those privileged from testifying are relatives by blood or marriage in the second degree, relatives of spouses in ascending and descending line and in the second degree, and lawyers, doctors, and clergymen with respect to professional secrets. Civil Code art. 1946.
But cf. Garschagen, Hoge Raad (Burgerlijke Kamer), March 28, 1938, 1939 Nederlandsche Jurisprudentie No. 122 (denying a Netherlands banker called as a witness on behalf of German proceedings the protection of a banker’s privilege under German law).
See text at notes 117-119 supra.
See note 61 supra.
Code Civ. Pr. art. 116(1).
Code Civ. Pr. art. 117(1).
Code Civ. Pr. art. 117(2).
Code Civ. Pr. art. 117(3).
Code Crim. Pr. arts. 260(1); 263(1); 264.
Code Crim. Pr. art. 282.
Code Crim. Pr. art. 289.
The Hague Convention of 1905, supra note 1, arts. 8-16; Statute Implementing 1905 Convention, supra note 6, arts. 10-18; The Hague Convention of 1954, supra note 2, arts. 8-16; Statute Implementing 1954 Convention, supra note 6, arts. 6-14.
Ibid.
See note 61 supra.
Treaty with Great Britain, supra note 5, art. 7(c). The public prosecutor transmits it for execution to the kantonrechter. Statute Implementing Treaty with Great Britain, supra note 6, art. 10.
See note 61 supra.
Treaty with Great Britain, supra note 5, art. 8(b).
For a more detailed discussion of some of the limitations, see note 113 supra.
See text at note 66 supra. The other means of compelling production of tangible evidence are available only to persons who are parties to an action pending in a Netherlands court. See text at notes 64-65 and 67-69 supra.
The Hague Convention of 1905, supra note 1, art. 8; The Hague Convention of 1954, supra note 2, art. 8.
These provisions raise the question whether a court may transmit a request for production of tangible evidence to a foreign authority even in those cases in which its own internal law does not provide for judicial action aimed at the production of such evidence. A negative answer seems indicated.
See text at notes 64-69 supra. The conventions provide for application of the same measures of compulsion that are available in domestic proceedings. See note 61 supra.
See note 73 supra.
See note 74 supra.
Civil Code art. 13.
Civil Code arts. 671, 743, 760, 767(2), 784(2), 807(1), 865, and 1224.
Civil Code 207.
Law on Population and Residence Records of April 17, 1887, as amended, Staatsblad 1887, No. 67.
Law on Commercial Registers of July 26, 1918, as amended, Staatsblad 1918, No. 439.
Trademark Law of September 30, 1893, as amended, Staatsblad 1893, No. 146, art. 5(3).
Patent Law of November 7, 1910, as amended, Staatsblad 1910, No. 313, arts. 15(e), 28(2).
Code of Commerce arts. 314, 749.
Law on the Notarial Profession of July 9, 1842, as amended, Staatsblad 1842, No. 20, art. 1; Civil Code arts. 1905, 1907.
Law on the Notarial Profession, supra note 160, art. 43(2); Code of Civil Procedure art. 436.
See, e.g., Civil Code art. 671a (delivery of real property); Code of Commerce art. 36(2) (incorporation of corporation).
Law on the Notarial Profession, supra note 160, arts. 10, 20a.
Law on Notarial Rates of March 31, 1847, Staatsblad 1847, No. 12.
Constitution art. 81; Sovereign Decree of December 18, 1813, No. 5. Staatsblad 1814, No. 1; Royal Decree of December 22, 1863, Staatsblad 1863, No. 149; Law of December 21, 1861, Staatsblad 1861, No. 129.
Law of June 22, 1961, Staatsblad 1961, No. 207.
Sovereign Decree on Publication State Journal of December 18, 1813, Staatsblad 1813, No. 6.
E.g., judgments, law, and decrees.
See, e.g., Civil Code art. 24 (records of personal status).
Ibid. Netherlands law does not distinguish between extracts — that is, documents composed of only parts of the official record — and summaries in which the custodian merely summarizes the content of the record without attempting literal reproduction. When the law provides for extracts (uittreksels), ordinarily the custodian will provide a summary rather than an extract. Cf. Asser-Wiarda, Personenrecht 1128-30 (9th ed. 1957).
Civil Code art. 24(1) specifically provides for “legalization of the signature of the custodian” by the president of the arrondissements-rechtbank. See further Hague Conference Exposé, supra note 75, at 1-2.
See text at notes 120-129 supra.
See notes 147 and 150 supra and accompanying text.
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© 1965 Martinus Nijhoff, The Hague, Netherlands
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Schaper, T., Smit, H. (1965). International Co-Operation in Litigation: The Netherlands. In: Smit, H. (eds) International Co-Operation in Litigation: Europe. Springer, Dordrecht. https://doi.org/10.1007/978-94-011-9208-8_16
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