NETHERLANDS Law and Practice Contributed by: Yvette Borrius, Emille Buziau, Marit Balkema and Daphne Beunk, Florent B.V.
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 litigation 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 written statement, attend- ing 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 losing party is not usually possible except in cases of a frivolous suit and – under certain conditions – in cases concerning intel- lectual property, where the prevailing 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 Litigation . 11.3 Interest Awarded on Costs Statutory interest on costs should be explicitly claimed by the other party. Statutory interest is calculated as a compound interest from the day the party is in default. The interest rate is deter- mined by the Minister of Justice.
12. Alternative Dispute Resolution (ADR) 12.1 Views of ADR Within the Country There is an increased interest among litigants for alternative dispute resolution (ADR), primar- ily in the form of arbitration, but also mediation and adjudication (expert determination or bind- ing advice). The main reasons for this increased interest are efficiency, expertise and confiden- tiality. Compared to the governmental judicial system, the parties have more influence on the structure and processing time of the dispute res- olution, the language and the applicable law, and the appointment of expert arbiters or advisers charged with giving a binding opinion. The hear- ings and the findings or awards are, in principle, not public. Arbitration institutes and expert arbi- trators in the Netherlands are frequently used, both nationally and internationally. The process of mediation, whereby the par- ties attempt to resolve a conflict assisted by a mediator who acts as an independent process manager, is beginning to gain traction as a form of ADR. Not all business disputes are suitable for mediation. The Mediation Directive (Euro- pean Directive 2008/52/EC), implemented in the Netherlands in 2012, inter alia entails that enforcement is facilitated, limitation periods can be interrupted with mediation and mediators are granted a legal privilege. The implementation act only applies to cross-border cases, for the time being. 12.2 ADR Within the Legal System As a general rule, the state court will not hear the case if the parties have agreed on arbitration. This does not apply when mediation has been agreed; mediation takes place on a voluntary basis. Recently (July 2024), the Supreme Court clarified that mediation clauses in commercial
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