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

Zeitschrift für Zivilprozeß International, Forthcoming

Posted: 2 Aug 2006

See all articles by Daan W.D.H. Asser

Daan W.D.H. Asser

Leiden University - Leiden Law School

H.A. Groen

Pels Rijcken & Droogleever Fortuijn

J.B.M. Vranken

Tilburg Law School

I.N. Tzankova

Tilburg Law School

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 Classification: K40, K41

Suggested Citation

Asser, Daan W.D.H. and Groen, H.A. and Vranken, J.B.M. and Tzankova, I.N., A New Balance. A Summary of the Interim Report Fundamental Review of the Dutch Law of Civil Procedure. Zeitschrift für Zivilprozeß International, Forthcoming, Available at SSRN: https://ssrn.com/abstract=894841

Daan W.D.H. Asser

Leiden University - Leiden Law School ( email )

P.O. Box 9520
2300 RA Leiden, NL-2300RA
Netherlands

H.A. Groen

Pels Rijcken & Droogleever Fortuijn ( email )

Postbox 11756
The Hague, Zuid-Holland 2502 AT
Netherlands

J.B.M. Vranken (Contact Author)

Tilburg Law School ( email )

NL-5000 LE Tilburg
Netherlands

I.N. Tzankova

Tilburg Law School ( email )

Tilburg, 5000 LE
Netherlands

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Abstract Views
1,039
PlumX Metrics