NETHERLANDS Law and Practice Contributed by: Yvette Borrius, Christine Vreede, Tiffany Zandbergen and Daphne Beunk, Florent B.V.
10.3 Procedure for Taking an Appeal Any party to the dispute in first instance may lodge an appeal within three months from the day the first instance decision was rendered by serving a notice of appeal to the other party (provided the value con- cerned exceeds EUR1,750). The notice of appeal may be filed pro-forma and the grounds for appeal may be submitted in a separate statement of appeal. The other party may lodge a cross-appeal at the latest in its statement of defence in appeal. Appeal in cassation must be filed within three months from the day the decision was rendered. It is required to include the reasons and arguments regarding the judgment of the court of appeal against which the objections are raised in the notice of appeal in cas- sation. 10.4 Issues Considered by the Appeal Court at an Appeal The appeal may be used both to complain about inac- curacies in the judgment of the district court, and to correct errors made by the parties. It is possible to limit the appeal to complaints regarding specific, lim- ited parts of the judgment by the court of first instance or to request the court of appeal to review the entire scope of the case on the basis of the objections put forward. In principle, both parties may put forward new facts and new arguments in appeal. Upon request of one of the parties, an oral hearing will be ordered. The Supreme Court only deals with matters of law; the type of complaint that can be raised in appeal in cassation is that the court of appeal has incorrectly interpreted or applied the rules of law, or that the judgment of the court of appeal is incomprehensible in view of what the parties have advanced. There is no opportunity for new arguments or a discussion on the facts in cassation. Oral hearings are an exception. After cassation, the Supreme Court may refer the case to a court of appeal for further proceedings. 10.5 Court-Imposed Conditions on Granting an Appeal The courts may not impose conditions on granting an appeal (other than standard DCCP regulations on admissibility of the appeal). Interim judgments may only be appealed at the court’s discretion unless such
interim judgment contains a final judgment on part of the dispute. 10.6 Powers of the Appellate Court After an Appeal Hearing The court of appeal should assess the case and decide on the arguments raised by the party lodging the appeal. Decisions of the district court that were not argued by the parties in appeal, should be con- sidered by the court of appeal as facts. However, if the court of appeal agrees on the arguments of the party lodging the appeal, the court of appeal also has to decide on all arguments that the other party has raised on that issue in the proceeding at the district court. The court of appeal can reverse the decision and provide judgment itself covering all elements of the dispute. 11. Costs 11.1 Responsibility for Paying the Costs of Litigation Parties are obliged to pay their own litigation costs. The losing party is usually ordered to cover the liti- gation costs of the prevailing party. This includes court fees as well as witness and expert fees. The awarded legal fees are based on fixed amounts for certain standard activities (eg, submission of a writ- ten statement, attending an oral hearing or imposing a pre-judgment attachment), but are also contingent on the value of the claim. The actual costs and attorney fees incurred by the prevailing party are seldom covered by the amount awarded. Recovery of the remaining costs of the los- ing party is not usually possible except in cases of a frivolous suit and – under certain conditions – in cases concerning intellectual property, where the pre- vailing party can be awarded full costs, including its attorney’s fees. The costs of litigation awarded can be challenged in ordinary appeal proceedings. 11.2 Factors Considered When Awarding Costs See 11.1 Responsibility for Paying the Costs of Liti- gation .
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