NETHERLANDS Law and Practice Contributed by: Yvette Borrius, Christine Vreede, Tiffany Zandbergen and Daphne Beunk, Florent B.V.
Declaratory Decision The court may render a declaratory decision of a cer- tain legal situation or right. Application for an Order or Injunction The court can order a party that acts unlawfully, or who is likely to act unlawfully, to perform certain actions (order) or to refrain from performing such actions (injunction). Most of these awards can be reinforced by penalty payments. Setting Aside (Ontbinding) The court may order the setting aside (partial or com- plete) of an agreement and award damages in the case of a breach. The setting aside has no retroactive effect. Amendment In the event of unforeseen circumstances and error, the court can partially or completely set aside or amend an agreement. Annulment (Vernietiging) A party that has concluded an agreement under duress, error, deception or misuse of circumstances may request the court to (partially) annul such an agreement. Annulment can also be requested in cases of fraudulent acts in respect of creditors (actio pauli- In the Dutch legal system, damages are awarded to compensate the aggrieved party in full. The damages are intended to restore the financial position of the aggrieved party as if the event that caused the dam- age had not taken place. Dutch law does not provide for punitive damages. In principle, damages are paid in monetary form. At the request of the aggrieved party, the court may rule that compensation must take place in another form (Section 6:130, DCC); eg, by restoration (restitutio in integrum) or rectification (Section 6:167 (1) DCC and 6:196 (1), DCC). The court may, under certain circum- stances, reduce a legal obligation to pay damages (Section 6:109, DCC). ana). Annulment has retroactive effect. 9.2 Rules Regarding Damages
Collateral benefits are deducted from the awarded damages (Section 6:100, DCC). If the liable party has derived profit from an unlawful act or a violation of a contractual obligation, the court may determine the compensation to be paid to the aggrieved party on the basis of its entire or partial profit (Section 6:104, DCC). If a penalty clause applies, the agreed penalty replac- es a claim for damages, unless the parties agreed that both a penalty and damages may be claimed simul- taneously. 9.3 Pre-Judgment and Post-Judgment Interest In principle, interest is owed as per the day after the legal obligation ought to have been fulfilled until the obligation has been fulfilled. The rate of statutory interest for both commercial and non-commercial transactions is determined by the Minister of Justice. The parties may agree on a different rate of interest. 9.4 Enforcement Mechanisms of a Domestic Judgment Final judgments (with the force of res judicata) or judg- ments with immediate effect may be enforced after being served on the other party by the bailiff. If a pre- judgment attachment was imposed against the obligor to secure compliance, this becomes an attachment in execution. If payment is not forthcoming, recovery may take place on the assets of the debtor (including assets of the debtor held by third parties). Specific rules may apply for other kinds of obligations. The entitled party can be authorised by the court to undertake certain activities itself, at the expense of the opposite party. In other cases, the court can decide that the judgment will supersede the juridical act that ought to have been performed by the party against whom the order was given. 9.5 Enforcement of a Judgment From a Foreign Country Recognition and Enforcement of Judgments From Non-EU Member States Pursuant to Section 431 (1) of the DCCP, decisions from a foreign country cannot be enforced in the Netherlands, unless a law or convention determines otherwise.
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