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Netherlands: New Preliminary Procedure Proposed for Timelier Case Handling

(Feb. 25, 2011) On February 2, 2011, the Minister of Security and Justice of the Netherlands, Ivo Willem Opstelten, submitted a legislative proposal on a preliminary procedure regulation for the timelier handling of cases, in particular those involving major societal interests. According to a Ministry of Security and Justice press release, the aim of the proposal is “to aid parties in resolving their disputes independently by means of a quick judicial intervention, if they are unable to do so themselves.” (Press Release, Ministry of Security and Justice, Quick Assessment of Important Legal Questions (Feb. 2, 2011),

Under the proposal, lower court judges (including judges of courts of first instance as well as of the court of appeal) would be able to submit questions on important legal issues to the Supreme Court, not only for cases involving collective damage claims in class action suits, but also where the Court's answer could affect a number of other factually similar cases, e.g., if the interpretation of a new law were involved. The preliminary procedure could thereby further the Supreme Court's roles in formation of law and also obviate the initiation of numerous individual procedures on the same issue. The procedure could also prevent lower courts from issuing contradictory decisions in similar cases.

The Court's timely answer to a question might, for example, induce the party responsible for damage to discuss a collective settlement. As an additional benefit, according to the Ministry, the answer can form part of the settlement, increasing the settlement's acceptability and potentially precluding subsequent dissatisfaction with its content. The press release gives as a specific instance “the answer to the question of whether, and subject to which circumstances, the reliance of an employer of an asbestos victim on the absolute period of limitation is still reasonable and fair.” (Id.) A Supreme Court answer might also serve to provide guidance to parties already negotiating a settlement without having reached agreement.

An answer is to be based on the facts of a case as reported by the lower courts. The Supreme Court can refrain from answering if that information is not sufficient for the formulation of an answer, “or if many relevant facts of the case are in dispute … .” Therefore, it is “up to the Supreme Court to decide whether a case is suitable for a preliminary procedure and to subsequently act through formation of new law.” (Id.)