proceedings for INTERIM measures UNDER DUTCH LAW
What does proceedings for interim measures under Dutch law mean? According to Dutch procedural law, interim relief proceedings in the Netherlands means the possibility to effectively protect certain rights and interests in case of urgency before a court decides in the main proceedings. If there is a threat of an infringement of your rights and interests as a result of the conduct of another party, and it is highly likely for the to be occur shortly, proceedings for interim measures may bring adequate protection. In such urgent cases, regular civil proceedings before a Dutch court will take too long and are therefore not suitable to protect urgent interests. Our Dutch lawyers in the Netherlands are specialized and experienced in Dutch procedural law and can represent you in proceedings for interim measures before a Dutch court. In this article, we inform you about the possibility of seeking interim relief under Dutch law, for which matters interim relief may be necessary and whether monetary claims can be made with the help of interim relief.
proceedings for interim measures IN THE NETHERLANDS
Dutch law only knows one type of procedure for interim relief: the so-called kort geding, which is a comprehensive proceeding for interim measures before a Dutch court. In another article we have elaborated upon the proceedings for interim measures under Dutch law and the steps of such proceedings for you in more detail.
WHICH MATTERS ARE SUITABLE FOR INTERIM RELIEF?
Before seeking interim relief before a Dutch court, it must first be assessed whether the matter as such is suitable for interim relief and the proceedings that go with it. For example, considering the nature of the decision in interim relief – which is provisional and thus not final – it is not possible to request the termination or cancellation of a contract. Instead, a transitional arrangement must be sought. An example of a claim suitable for interim proceedings is the enforcement of compliance with a contractual agreement. Further, also actions for injunctions are typical for proceedings for interim measures.
Entrepreneurs often do not have the time to spend a long time in uncertainty, especially if the infringement is already imminent. In that respect and considering their fast nature, proceedings for interim measures can bring solace. To encourage the opposing party’s compliance with the decision in interim relief, it is wise to request the judge to impose a penalty payment for each day that the opposing party does not comply with the judge’s decision. Note that such penalty payments cannot be imposed in relation to monetary claims. Further, interim relief proceedings can also be employed to lift (protective) attachments, for example if a bank account or other assets of yours have been attached. Other examples are the omission of harmful publications, the collection of a monetary claim or the termination of an existing unlawful situation.
INTERIM RELIEF IN THE NETHERLANDS AND MONETARY CLAIMs
A monetary claim in interim relief must be made plausible and this requirement equally applies to a claim for advance payments. Since a decision in interim relief has a provisional nature, judges are very reluctant to sustain monetary claims in proceedings for interim measures. For monetary claims to be sustained, it is necessary for the plaintiff to prove that it is urgent to receive the money immediately. This process requires a balancing assessment of the interests involved on both sides. As proceedings for interim measures are short and with less protective procedural rules, a strict obligation to give reasons applies. For that reason, it is important to seek advice from a specialized and experienced lawyer.
INTERIM RELIEF IN THE NETHERLANDS AND THE RESTITUTION RISK
A judge in interim relief can declare the provisional enforceability of a claim in interim relief. Interim proceedings can be followed by regular main proceedings on the merits (bodemprocedure), albeit emphasized that such is optional, not mandatory. Main proceedings allow for a more in-depth assessment of the case and a larger number of procedural rules applies to them. Therefore, main proceedings generally take (considerably) longer. The initiation of main proceedings does not alter the declared provisional enforceability of a decision in interim relief. This, however, can have certain implications if the judgment following the main proceedings deviates from the decision in interim relief. For example, if a monetary claim is declared provisionally enforceable in interim proceedings and this later proves to be unjustified, a consequence can be that payments already done must be refunded. Such an obligation to refund can become problematic if, for example, the debtor (the plaintiff in proceedings for interim measures) has become insolvent in the meantime. In such an event, the party who won the main proceedings is left empty-
handed. This situation is referred to as the restitution risk, which can be brought forward by the defendant in interim relief to argue that awarding the monetary claim would be unjustified. Alternatively, the restitution risk can be avoided by providing collateral security such as a bank guarantee.
legal remedies: redress and other forms of Appeal under Dutch law
Our litigation lawyers at MAAK Advocaten are specialized in Dutch procedural law and are highly experienced in redress and other forms appeal under Dutch law. After a court has delivered its judgment, it may well be that one of the party disagrees with the judgment or is of the opinion that it is incorrect or even unlawful. In such a case, it is – under certain conditions – possible to object to or appeal against such a judgment. The exact legal remedy (rechtsmiddel) that is admissible – that is: an application to set aside a judgment, an action for redress / appeal, or further appeal – depends on the nature of the contested judgment. In this article, we inform you about the right to appeal in the Netherlands, when an appeal is admissible and which deadlines must be observed.
WHEN CAN a judgment be APPEALed AGAINST IN THE NETHERLANDS?
If a judge issued a default judgment against a party because it did not appear for the proceedings in court or it did not respond at all, it is possible to lodge an objection against this default judgment. The objection holds the reasons for appeal. When lodging an appeal, the opposing party is also requested to appear in court again. If the objection is filed in due time and form, the court will redo the case. When filing the objection, it is best to seek advice from a Dutch lawyer who can also advise about rights and obligations and submit the application to the court in due time.
time limit for appeal against a decision in interim relief
In the Netherlands, the time limit for filing an appeal against a decision in interim relief is relatively short, namely four weeks after the judgment is served to the parties by the bailiff. Within this period, a lawyer must not only request the plaintiff or creditor to reappear in court, but also formulate a complete and formal objection to the asserted claim.
If the objection is filed too late, the judge can no longer take it into account, with the consequence that it is no longer possible to appeal against the decision in interim relief. A timely application is therefore indispensable.
DUTCH LAWYER SPECIALIzED IN interim relief proceedings in the netherlands
Our team of Dutch arbitration lawyers in the Netherlands (Amsterdam) have a strong reputation in (international and domestic) proceedings. Would you like to obtain advice on initiating a procedure, the annulment or enforcement of an award, or would you like to know more about the best clause? Please contact Remko Roosjen (Dutch lawyer specialized in interim relief proceedings in the Netherlands) or one of our other Dutch lawyers in Amsterdam.
T: +31 (0)20 – 210 31 38
E: mail@maakadvocaten.nl
Contact: Remko Roosjen | Dutch litigator