NETHERLANDS Law and Practice Contributed by: Yvette Borrius, Christine Vreede, Tiffany Zandbergen and Daphne Beunk, Florent B.V.
settlement, cartel damages, commercial claims and bankruptcy claims from receivers. 2.3 Third-Party Funding for Plaintiff and Defendant Litigation funding is available to both claimants and defending parties. On the defence side there will be need for an “upside”; ie, in the form of a counterclaim. In the case of portfolio funding of litigation, all litiga- tion of the company concerned, whether claimant or defendant, is financed. 2.4 Minimum and Maximum Amounts of Third-Party Funding The minimum for claims/disputes to be financed by lit- igation funders registered and operating in the Nether- lands varies between approx. EUR250,000 and EUR5 million. As a rule, a litigation funder asks on average 20–40% of the proceeds (with deviations depending on the rigidity of the claim and severity of the risks). 2.5 Types of Costs Considered Under Third- Party Funding The costs to be financed by a third-party funder include lawyers’ fees, bailiff fees, court fees, costs of expert witnesses and possible orders for costs. 2.6 Contingency Fees Based on their professional rules, lawyers in the Neth- erlands are prohibited from providing a “no win, no fee” service. However, alternative fee arrangements dependent on the outcome of the case (such as basic fee plus success fee) are permitted. 2.7 Time Limit for Obtaining Third-Party Funding In principle, applications for litigation funding may be submitted at every stage of the legal proceedings – at the start, halfway through, or on appeal.
administrative and tax cases. A failure to comply with these prerequisites may result in the inadmissibility of a claimant’s claim. The court may be reluctant to award costs of litigation if the claimant starts litigation without prior communication setting out its position. 3.2 Statutes of Limitations Unless otherwise provided by law, a claim becomes time-barred after 20 years (Section 3:306, DCC). In many cases, the DCC provides for shorter limitation periods, for example: • the right to claim specific performance becomes time-barred five years after the claim became due and payable; in cases of non-conformance on the basis of a sales agreement, the seller’s rights of action and defences are time-barred two years after the buyer’s complaint towards the seller; • the right to claim damages or a contractual penalty is time-barred after five years from the day after the injured person became aware of: (a) the damage inflicted; and (b) the identity and liability of the person liable for such damages; • the right to nullify an agreement in the case of deception or error becomes time-barred three years after discovery thereof; and • the right to demand the annulment of a resolution of a constituent body of a legal entity becomes time-barred after one year following the notification or knowledge thereof. 3.3 Jurisdictional Requirements for a Defendant Dutch courts have international jurisdiction if there are legal provisions to this effect or if the parties have selected a Dutch court as the forum for hearing any disputes arising between them. The European Council Regulation EU No 1215/2012 of 12 December 2012 (Brussels I Recast) contains the most important set of rules regarding international jurisdiction. The Lugano Convention on jurisdiction and the enforcement of judgments in civil and commercial matters is in force between EU member states and Switzerland, Norway and Iceland. The Convention on choice of court agree- ments (the Hague, 2005) is applicable when it comes to exclusive choice of court agreements between parties to commercial transactions from EU member
3. Initiating a Lawsuit 3.1 Rules on Pre-Action Conduct
There are no procedural prerequisites to filing a law- suit, except in cases of mismanagement brought before the Enterprise Court (Section 2:349, DCC) and collective actions (Section 3:305a, DCC), and
773 CHAMBERS.COM
Powered by FlippingBook