A New Balance. A Summary of the Interim Report Fundamental Review of the Dutch Law of Civil Procedure

Abstract:     
This article presents a summary of the results of a fundamental review of Dutch civil procedure in a comparative perspective. The approach of the review is different from the usual one in at least two ways. The first difference is that, after some preliminary remarks to inform the reader of essential features of Dutch procedural law, a normative framework of ten principles is drawn up, whose function it is (a) to methodologically identify what is important when considering a fundamental reform, and (b) to serve as criteria for the assessment of the pros and cons of concrete reform proposals. The authors argue that each reform of civil procedure should also start with establishing a normative framework. They also claim that the ten principles are applicable to all reforms, irrespective of whether they are conducted in civil law countries or in common law countries. This does not mean that procedural law must become identical in all countries, but only that the discussion about concrete reform proposals should always be structured by the same ten principles. The normative framework therefore also serves as a platform to effectively compare and evaluate the divergent reform choices in various countries.

The review is based on an extended study of civil procedure of both civil law and common law systems. It shows a convergence of civil law and common law, among other things, in introducing the concepts of the parties' duty to cooperate, and the judge's duty to actively manage cases, and also in emphasising the pre-action phase and the relevance of multi-party proceedings, and in limiting access to appeal.

The second difference of the review is the authors' plea for new methods of regulation. Instead of the usual approach of reforming through statutory instruments or drawing up a civil procedure code, the authors prefer forms of cooperation which in other fields of law are already known as private regulation or soft law. The law no longer has its classic, hierarchical, central significance and should, therefore, be used only to point out very general guidelines. These general guidelines must then be fleshed out by professionals directly involved in the field, using and profiting from their experience, insights, and knowledge. For civil procedure, these professionals are judges, lawyers, bailiffs and other legal assistants, and also those who are involved in alternative forms of dispute resolution. In this method, it is essential that the experiences, insights, and knowledge of these professionals are collected and mutually exchanged. In other words, a process must be initiated in which choices can be made about how to act in specific situations and in which these choices can be subjected to constant feedback and adjustments.

Keywords: Dutch law, civil law, procedural law, comparative law, european (national) law

JEL Classifications: K40, K41

Accepted Paper Series