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Last update: 21-04-2006
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Alternative dispute resolution - Netherlands

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You will have had an overview of the alternative methods for resolving disputes when reading the information contained in the factsheet "ADR — general information".We will try in this new factsheet to give you more practical information on ADR in The Netherlands.



 

TABLE OF CONTENTS

1. What kinds of disputes are possible to solve by means of this type of ADR? 1.
2. Before going to Court parties can always choose to try to reach a solution for their conflict themselves. This is also possible by the assistance of a mediator operating as an independent facilitator. Commercial mediation is possible in almost any conflict outside the scope of the penal system. 2.
3. Is recourse to this type of ADR compulsory under law or under the terms of a court order? 3.
4. Is this type of ADR regulated by law? 4.
5. There could be contractual clauses which stipulate that any dispute relating to the contract will be submitted to ADR before any court referral. Are such clauses binding for the two parties for this type of ADR? 5.
6. How to make sure that the ADR to which you have recourse enjoys the degree of reliability which the administration of justice requires? In particular, how to make sure that the negotiations will be kept confidential? 6.
7. Is it necessary to seek legal advice? What is the role of the lawyer in this type of ADR? 7.
8. Can this type of ADR be conducted at distance, in particular by electronic means? 8.
9. Is this type of ADR free of charge? If not, how are expenses distributed? Is it possible to be granted legal aid? (see the theme “legal aid”) 9.
10. If you have recourse to this type of ADR, but do not manage to solve the dispute, is it still possible to refer to a court? Does the recourse to this type of ADR have an influence on the limitation period to refer to the court? 10.
11. If you have recourse to this type of ADR, and manage to solve the dispute, what form does this agreement take? What happens if the agreement is not enforced spontaneously? Can normal enforcement procedures be used? Is it still possible to refer the matter to a court? 11.
12. As mentioned above the Ombudsman decisions are non-binding. 12.

 

First of all, which are, from a general perspective, the different types of ADR in The Netherlands?

Apart from an extensive arbitrationsystem, governed by national and international law, there are several possibilities for extra-judicial dispute resolution in the Netherlands, of which binding advice (“binding third party-ruling”) and mediation are the most important ones.

You may in most of the situations have recourse to one or the other of these differents types of ADR. To get more information, please select in the list hereafter the situation in which you find yourself

Conflicts between consumers and business

As already explained in the factsheet "ADR — community law", the Commission has published on its website the list of a large number of ADR bodies for resolving consumer disputes in all the Member States. You will find in this list the practical information you need to decide whether to have recourse to one of these ADR schemes: its structure, its domain, the kind of procedure it follows, its cost and details. You may consult this list at the following web address:

It may well be that you need to have recourse to an ADR body established in another Member State. To know precisely which body to go to, you may consult the web pages of the EEJ-Net or of the FIN-NET in case of a conflict concerning financial services

  • conflicts between businesses
  • conflicts between employees and employers
  • conflicts between landlords and tenants
  • family conflicts
  • conflicts between individuals
  • other specific situations (eg relations with public authorities, health services, solicitors, notaries etc)

1. What kinds of disputes are possible to solve by means of this type of ADR?

Complaints about governmental proceedings can be brought to The National Ombudsman (appointed by the National Parliament). The National Ombudsman can start an investigation, judge the complaint as well-founded (or not), give a non-binding decision in a particular case and publish his recommendations in his annual report.

Other (commercial) complaints are dealt with by Private Ombudsmen, initiated by trade-organisations. Most important one (regarding the number of complaints) is the Insurance Ombudsman. The Ombudsmen interfere in a dispute by trying to reach for a common solution first and by giving a non-binding decision to settle the dispute. Because of the relation with the trade-organisations in most of the cases the supplier accepts the decision of the Ombudsman.

Binding decisions (binding third party-ruling) are given by Tenants’ complaints boards in case of disputes regarding the Act on the rental of public housing (e.g. regarding maintenance, payments for heating and electricity, refunds).

The Foundation for Consumer Complaints Boards (SGC) is a notified general framework scheme, with national coverage and responsibility for setting up and maintaining 30 sectorial complaints boards acting under its umbrella. The complaints boards reach decisions that are binding (binding third party-ruling) on both parties. The basis for the competence of a Complaints Board is the terms and conditions of supply employed by the members of the trade associations participating in the Complaints Board. Such terms and conditions include the stipulation that consumers can submit a dispute with a supplier to a Complaints Board instead of to an ordinary court.

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2. Before going to Court parties can always choose to try to reach a solution for their conflict themselves. This is also possible by the assistance of a mediator operating as an independent facilitator. Commercial mediation is possible in almost any conflict outside the scope of the penal system.

As from the 1st of April 2005 referral facilities to mediation are introduced at all Courts and at the legal service counters (primarily accessible for people of lower income). Parties can only participate on voluntary basis.

This is only in specific administrative and civil cases (including familymediation).

The private Ombudsmen and complaints boards will only deal with complaints in their respective areas.

In general, there are only two important categories of disputes that cannot be dealt with by a Complaints Board:

  • disputes regarding the non-payment of an invoice that are not based on a substantive complaint;
  • disputes that pertain to death, physical injury or illness.

Of course, Complaints Boards cannot deal with matters that have already been submitted to an ordinary court.

3. Is recourse to this type of ADR compulsory under law or under the terms of a court order?

No. Recourse to the types of ADR as mentioned above is not compulsory under law or under terms of a court order. Nevertheless parties can agree with one another to use arbitration and thereby exclude recourse tot court.

4. Is this type of ADR regulated by law?

Arbitration is governed by the sections 1020-1076 of the Dutch Civil procedure rules (Wetboek van Burgerlijke Rechtsvordering) and the international Treaty of New York.

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The other extra-judicial procedures have no specific legal basis. Nevertheless, if a complaint board wishes to be allowed to function under the umbrella-organisation for consumer complaints boards, the board will have to be recognised as such by the Minister of Justice. For the purposes of recognition the board will have to fulfil certain criteria that are laid down  in recognition rules by the Minister of Justice.

The legal basis for The National Ombudsman is laid down in the National Ombudsman Act.

5. There could be contractual clauses which stipulate that any dispute relating to the contract will be submitted to ADR before any court referral. Are such clauses binding for the two parties for this type of ADR?

Parties can agree with one another to use arbitration and thereby exclude recourse to court. The judge is not competent to deal with the case in case of an arbitration agreement according to sect. 1022 (Wetboek van Burgelijke Rechtsvordering).

As stated above the basis for the competence of a Complaints Board is the terms and conditions of supply employed by the members of the trade associations participating in the Complaints Board. Such terms and conditions include the stipulation that consumers can submit a dispute with a supplier to a Complaints Board instead of to an ordinary court. These clause is binding for both parties although the consumer has a month to reconsider whether to choose to go to court or not.

As mediation is a relatively new instrument there are still few experiences with mediationclauses. Nevertheless, mediationclauses do not break the judges competence to deal with the case.

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6. How to make sure that the ADR to which you have recourse enjoys the degree of reliability which the administration of justice requires? In particular, how to make sure that the negotiations will be kept confidential?

7. Is it necessary to seek legal advice? What is the role of the lawyer in this type of ADR?

In all ADR-procedures representation of the parties by a lawyer is possible, but not necessary. In arbitration the lawyer has more or less the same role as a lawyer in an ordinary court procedure. In a procedure before a consumer complaint board representation by a lawyer will probably not compensate the costs. Parties can have themselves represented in an mediation. There’s still discussion going on on the role of the lawyer in a mediation.

8. Can this type of ADR be conducted at distance, in particular by electronic means?

This may be possible in some areas, but these methods aren’t used on a larger scale.

9. Is this type of ADR free of charge? If not, how are expenses distributed? Is it possible to be granted legal aid? (see the theme “legal aid”)

The costs of an arbitration procedure vary by Arbitration Board. It is difficult to give an estimate of the costs in advance.

The Netherlands Arbitration Institute (NAI) is one of the main providers.

Their estimation of the total cost of an arbitration is made up of the following elementsThe Ombudsmanprocedures are free of charge.

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The Complaints Boards require fixed contributions which vary from € 27 to € 113 depending on the amount invoiced for the product or service in question. This includes the cost of any expert reports required. If a Complaints Board puts a consumer in the right, the contribution has to be reimbursed by the supplier concerned.

The starting point is the fact that the parties must bear the cost of mediation themselves. One exception to this rule is the contribution to the cost of mediation for persons of limited means (see further theme “legal aid”). In addition, to encourage parties to take up the Court’s suggestion of mediation, a (limited) financial contribution of € 200 is available for every case involving mediation during a specific initial period. This is a fixed amount per mediation that will be paid directly to the mediator, regardless of the financial capacity of the parties.

10. If you have recourse to this type of ADR, but do not manage to solve the dispute, is it still possible to refer to a court? Does the recourse to this type of ADR have an influence on the limitation period to refer to the court?

The Complaints Boards reach decisions that are binding on both parties. It is not possible to lodge an appeal against a decision made by the Complaints Board. The only way to have a decision tested is to submit it to an ordinary court within two months after it was sent. A judge can, however, only marginally test the decision, as provided for in section 904, book 7 of the Dutch Civil Code. This means that a judge will only declare the binding decision to be null and void if the decision, according to reasonable and fair standards, is unacceptable in view of its contents or the way in which it was reached under given circumstances. This means that a decision by a Complaints Board will only be rejected by the courts if the Complaints Board has ignored the fundamental principles of procedural law, such the right of both parties to be heard.

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In the Dutch civil code there’s a provision to interrupt the limitationperiod of a claim by starting a procedure in order to get a binding advice (sect. 3:316 par. 3 BW, Civil Code).

If parties do not manage tot reach an amicable solution through mediation they can still refer their case to a court. Mediation does not influence the limitation periods in a way that the running of the limitation period regarding the claim that is the subject matter of the mediation, is suspended from the moment the mediation is started.

11. If you have recourse to this type of ADR, and manage to solve the dispute, what form does this agreement take? What happens if the agreement is not enforced spontaneously? Can normal enforcement procedures be used? Is it still possible to refer the matter to a court?

An arbitration procedure results in a decision which is binding for both parties. The outcome of an procedure is enforceable in a similar way as a judgment under national law. An arbitral award may be declared enforceable simply by leave of enforcement granted by the President of the District Court. This gives the arbitral award the same force as a court judgement.

The Complaints Boards reach decisions that are binding on both parties. It is not possible to lodge an appeal against a decision made by the Complaints Board. The only way to have a decision tested is to submit it to an ordinary court within two months after it was sent. A judge can, however, only marginally test the decision, as provided for in section 904, book 7 of the Dutch Civil Code. This means that a judge will only declare the binding decision to be null and void if the decision, according to reasonable and fair standards, is unacceptable in view of its contents or the way in which it was reached under given circumstances. This means that a decision by a Complaints Board will only be rejected by the courts if the Complaints Board has ignored the fundamental principles of procedural law, such the right of both parties to be heard.

If a supplier does not comply with a binding decision, the trade association guarantees that its members will act in accordance with the binding decision. Such a guarantee entails that a trade association takes over the obligation the Complaints Board poses on one of its members whenever the member in question does not voluntarily comply with the obligation, nor submits the binding decision for testing to an ordinary court within two months after it was sent. This compliance guarantee ensures implementation of the decisions made by the Complaints Board.

12. As mentioned above the Ombudsman decisions are non-binding.

An agreement reached following the mediation process does not have the authority of a final decision. It constitutes an agreement under the terms of sect. 7:900 of the Dutch Civil Code (BW).

In the Netherlands parties can easily have their agreement confirmed in a notarial act. This makes the agreement enforceable in a similar way as a judgment under national law. If the mediation agreement is the result of a judge referral to mediation, the settlement agreement can be confirmed in a judgment by the Court.

As extra-judicial dispute settlement is an alternative to consideration by the court in the usual manner, decisions cannot be appealed against to a court. Nevertheless it is possible both during and after an alternative dispute settlement to plead the same cause before a general court.

Further information

In 2003  the experiments with referral to mediation at several Courts throughout the country and in the legal aid system have been evaluated. You can find the evaluation report (in Dutch) under: http://www.wodc.nl/images/OB210_tcm11-5208.pdf

Summary in English: http://www.wodc.nl/images/OB210_sum_tcm11-5218.pdf

Several research has been done on alternative dispute resolution in the Netherlands. The ministry of Justice has –among others- initiated the following:

The ADR Business Centre has also recently published on ADR in business to business disputes and labour disputes:

  • Research on conflictmanagement and mediation in Dutch enterprises: Nederlands PDF File (PDF File 68 KB)

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Last update: 21-04-2006

 
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