The claim industry as object of research
Under the headline ‘The claim industry’, the Volkskrant on Saturday the 27th of February devoted attention to the increase in the number of collective redress procedures in the Netherlands. The figures presented by the newspaper are clear: organisations who allegedly represent half a million people, have in total claimed 1.6 billion euros in damages from businesses and institutions. Yet this message will not have surprised the average newspaper reader. The media regularly reports about new collective redress procedures and many people will have asked themselves whether they should not have also joined the proceedings. Who does not have an insurance policy which appeared to have excessive charges, drive a car with rigged software, play the State Lottery or regularly take the NS train during rush hour? Only a few people would consider litigating for themselves to recover these kinds of damages. The amounts of losses are too low and the costs and risks of litigation are too high. One speaks here of ‘scattered damage’. However, if the claims are combined in a collective claim for damages, it suddenly involves significant amounts and it becomes a very different matter. (more…)
The Unity of Law 2: A step towards a definition and instruments that can optimize the unity of law
In his ‘The Unity of Law 1: Blogging about the unity of law?’, Eddy Bauw gave an inspiring kick-off on the subject of the unity of law. It is the intention to – with this blog as a starting point – start a series about that topic. With this blog and the next blog, this challenge is taken up. (more…)
The civil law sanctioning of violations of the principles of civil procedure
In December 2015 my book ‘Principles of civil procedure’ was published as part of the Asser Procesrecht-series (‘Beginselen van burgerlijk procesrecht’ Wolters Kluwer: Deventer 2015). In this book, I discuss, after some general considerations, the guiding principles of civil procedure from a Dutch and European perspective. Based on the research into and the analysis of the seven discussed principles of civil procedure, I included in the General Considerations a chapter on ‘Sanctions after violations of a principle of civil procedure’. From my research into the seven specific principles dealt with, I had quickly discovered that the sanctioning of violations of those principles (which are almost always protected as a human right under Article 6 ECHR and Article 47 EU Charter) is rather shabbily endowed in the Netherlands. The theme is hardly discussed in the doctrine and rarely any specific rules (through legislation or case law) exist. Therefore, we seem to be unable, as yet, to cope adequately with the sanctioning of such violations. I am convinced that this is a bad state of affairs, that we need an urgent improvement and that – fortunately – there is a solution available. (more…)
Montesquieu and marginal review
In Dutch administrative law, a familiar view entails that the administrative court should not ‘occupy the chair of the executive’. By virtue of its powers, the government would have a ‘discretionary latitude of decision’ in which it is only under democratic control; insofar as it is not a matter of a ‘criminal charge’ there is only space for judicial review beyond the ‘edges’ of the administrative domain. In literature the ‘marginal test’ encounters increasing criticism. Many advocate that the Dutch administrative review of proportionality should align itself to EU law and German law, in which judicial control on proportional weighing of interests has a broader significance. The ever ongoing ‘withdrawal of the legislature’ would require a more sophisticated and nuanced approach whereby the judge can intensify his review in cases in which there is no punitive decision, but nonetheless a breach of important interests or fundamental rights. In addition to the literature, the courts are tending towards a broader review of proportionality. Apart from the question whether there was a ‘criminal charge’, the Administrative Law Division recently ended the so-called ‘alcolock programme’; upon application of that regulation it considered a proportionate weighing of interests ‘insufficiently guaranteed’ (ABRvS 4 maart 2015, AB 2015). (more…)
Jeckyll and Hyde in Strasbourg
Having a split personality is usually not seen as a positive thing. Not for the outside world, and not for the person itself. Robert Stevenson’s novel about Dr Jekyll and Mr Hyde famously showed how the constant shifting between personalities can almost destroy someone. A clear and unified self-perception and image is the preferred style of identity in almost all fields of life and practice, from organizational science to marketing or psychology. Choices have to be made for the sake of clarity and efficiency, but also for the mere functioning of a person or organization it seems.
From this perspective, it is no surprise that the history of the main guardian institution of the ECHR, the European Court of Human Rights, which celebrated its 50th anniversary on the 4th of November, has been marked by an almost constant discussion about the Court’s role and focus. The text of the Convention itself seemed straightforward enough about the function of the Strasbourg Court. It states in Article 19 that the Court was created “to ensure the observance of the engagements undertaken by the High Contracting Parties.” But the ways in which this can be done has led to deep soul-searching within the Court and a lot of debate outside of it. Should the Court focus on the role of provider of individual justice in the applications that represent the large bulk of its docket? Or should it, for principled or pragmatic reasons take an altogether different, more constitutional role, ruling on principles and structures rather than the nitty-gritty of each individual case? (more…)
The Unity of Law I: Blogging about the unity of law? The kick-off
Let me get straight to the point. The aim of this blog is to start a series about the ‘coherence of law’. The idea to do this arose after a session of the Montaigne Centre in July about this theme. During the session it became clear that the participants had rather different opinions about the function and importance of the coherence of law. It seems worthwhile to further explore these differences in order to identify the various aspects related to the coherence of law. This could contribute to our individual understanding and potentially lead to a common approach with a great follow-up. A series of blogs seemed like a good way to start this process. (more…)
Association of Human Rights Institutes’ Conference on Human Rights and Universality
The Association of Human Rights Institutes (AHRI) held their 16th annual conference on 21-22 September 2015 in Serbia, hosted by the Belgrade Centre for Human Rights. This blog gives a brief overview of my experiences at the conference. The theme of the conference was Human Rights and Universality, in acknowledgment of the new ways emerging to approach the universality of human rights. This theme reflected on discussions about what are common human values, and how human rights should be interpreted in the different cultural contexts. (more…)
The revolt of the judges
Judges in the Netherlands are rebelling against the endless series of changes in the organization of the judiciary. What is occurring is more than a simple merger; the organization has become too dominant in the judges’ work.
Judges do substantive work. They give judgments in other people’s disputes. To be able to do that work well they must be properly educated and trained. High demands are imposed on judges. Judges’ work is very diverse. The work of a family-court judge is usually content-wise less difficult than the work of commercial court judge. But where the commercial court judge can immerse himself in a difficult legal puzzle, the family-court judge must be able to deal with strong emotions and accommodate them during a hearing. With the internationalization and the Europeanization of the law, the judicial tasks have become more difficult substantively. This is the case in all legal areas. The Council for the Judiciary was installed to lead the necessary changes within the judges’ work in the right direction. It appears that now the Ministry of Security and Justice and the Council for the Judiciary have overplayed their hand in relation to the judges. (more…)
Change is timeless
This week I realized that during my entire professional life I have had to deal with changes. This already started when I was still working at the UU from 1985 until 1994. Simply in the education I experienced the semester system (2 teaching periods), the ‘block system’ (5 teaching periods) and the trimester system (3 teaching periods). At that time most colleagues found these changes a good idea. But good ideas are also time-bound. So I was not surprised that when I returned to the UU in 2012, I found a system of four teaching periods.
And, once again back in time, I was only working for a few years at the courts when major changes were announced. Since 1999, the courts have immensely professionalized and modernized themselves as an organization. As a court manager I have stood on the front line for ten years, it was a golden age to witness and – on a modest scale – help shape. (more…)
Dutch help for the Greek civil justice system?
The statement made during the Euro Summit on Greece on the 12th of July following 17 hours of meetings included one measure which has received less attention than the other (serious) demands made against Greece to qualify for new loans (Euro Summit Statement Brussels, 12 July 2015 (SN 4070/15)). One of the measures that Greece must take is:
“the adoption of the Code of Civil Procedure, which is a major overhaul of procedures and arrangements for the civil justice system and can significantly accelerate the judicial process and reduce costs”.
At first sight it seems remarkable that a reform of the procedure in civil courts has been given such a prominent place between the imposed cuts and economic reforms, especially in light of the hectic discussion during that memorable Sunday evening. What is the connection between this measure and the Greek debt problems? Does this not prove the ultimate European interference by also prescribing Greece a civil procedural law? (more…)