Archive for the ‘Dutch law’ Category

MH17 Crash: Some Legal Questions Answered

For LSA, the Dutch Association of Personal Injury Lawyers, Antoinette Collignon has answered some frequently asked legal questions further to the crash of Malaysia Airlines flight MH17. The Dutch text can be found on www.lsa.nl.

Anyone involved in a crash like Malaysia Airlines MH17 on 17 July 2014 suffers beyond description. So far there are no indications that the aircraft had mechanical failures. It seems that the plane was shot down by pro-Russian rebels using arms supplied by Russia. The investigation into the crash, the recovery and repatriation of the victims are highly complex and sensitive subjects. Just as complex and sensitive is the settlement of the loss already sustained and still to be sustained by the surviving relatives. Based on the information available at the time of writing – 26 July 2014 – experts have answered nine questions of law that have come up.

1. Could Malaysia Airlines Be Held Liable?
Under the Montreal Convention, which provides for strict liability in civil aviation, Malaysia Airlines will be required to pay damages up to 113,100 SDR (around EUR 120,000) for each passenger. It is irrelevant whether Malaysia Airlines is to blame for the crash. The surviving relatives will have to demonstrate the loss. In addition, Malaysia Airlines will be liable if it is found to be at fault. However, without an independent investigation it is impossible at this point to determine whether the airline is to blame. Claims must be filed within two years of the crash or they will lapse.

2. Which Law Applies?
The Montreal Convention does not contain any rules on the law governing the travel agreement and the requirement to pay damages. A European court will apply Regulation EC/593/2008 on the law applicable to contractual obligations (Rome I). Article 5.2 of that Regulation stipulates that if the law applicable to a contract for the carriage of passengers has not been chosen by the parties the law applicable will be the law of the country where the passenger has his/her habitual residence, provided that either the place of departure or the place of destination is situated in that country. This means that for most Dutch victims of the crash the contract for their carriage is likely governed by Dutch law. For non-Dutch nationals the applicable law should be determined on a case-by-case basis.

3. What Do the Claims for Damages of the Victims’ Families Cover?
If Dutch law applies, the claims for damages consist of so-called loss of dependency (costs of repatriation, funeral, etcetera), and loss of earnings (if, for instance, one of the family’s breadwinners or the sole breadwinner has died). It is difficult to compute the loss as allowance should be made for variable and fixed costs, among other things. In some cases it is possible to claim non-economic damages if the victims’ families sustained psychological damage when confronted with the crash. Emotional loss (bereavement following the loss of family members) cannot be claimed (yet) as the Upper House  (Senate) rejected the legislative proposal in 2010.  At the time of writing the government is working on a new proposal for compensation of emotional loss. If not Dutch law applies, but the law of another country, it is possible to claim not only loss of dependency but also non-economic damages following the loss of a family member.
4. Could the Separatists Who Downed the Plane Be Held Liable?
If it is determined that separatists have shot down the plane, Dutch law allows for claims under civil law against individuals for the damage they have caused. It is irrelevant whether or not they intended downing a civil aircraft. In that case the loss and damage should be compensated in full. There is a possibility that the individuals in question could be prosecuted under criminal law. The Dutch Public Prosecution Service could issue an international arrest warrant. A complicating factor, of course, is that the Donetsk People’s Republic (the state proclaimed by the pro-Russian separatists) is not likely to act on such warrant. The Ukrainian central authorities will also lack the power in this area to help. Theoretically, therefore, it is possible to hold the separatists liable, but success is doubtful. Even if the liable party could be found, it would be difficult to force that party to pay up. It is easier to hold a country liable than a group of rebels. In 1996 the United States, for instance, paid damages to the families of the victims of the Iranian civil aircraft that in 1988 had been accidentally shot down by an American warship.

5. Could Russia Be Held Liable?
At this point there is no definite answer to this question. If it turns out that the Russian political or military powers had direct command and control to down the aircraft, Russia might be held liable. Russia could also be held liable (in part) for supplying the weapons used to shoot down the aircraft. If separatists have used an SA-11 missile it might have been provided by Russia. SA-11 grizzly – so-called double-digit surface-to-air missile (BUK) – developed by Russia is an anti-aircraft system capable of bringing down aircraft from high altitudes. There have been reports that the equipment and the crew running it were provided by Russia. However, a causal connection should be demonstrated between the supply of the system and the crash. Also established should be fault. Although difficult, legally speaking, this is not impossible. The question further arises whether under the law applicable to the crash a government could be held liable. In other words: If Russia turns out to have supplied the weapons used to take down the aircraft, Russia might be held liable.
6. Could the Ukraine Be Held Liable?
This depends on the facts and circumstances. If the investigation reveals that Ukrainian military downed the aircraft, the Ukraine could be held liable. So far there has been no mention of this in the reports. The Ukrainian aviation authorities could be liable if they have given permission to fly over the area at an altitude from which they knew missiles could take down aircraft. This, too, calls for further investigation.
7. Could the Victims’ Families Go to Court to Demand Damages from One of the States Involved?
There are possibilities for the families of the victims to file claims against the states involved for damages to the extent that these are not paid by Malaysian Airlines. It is early days yet to answer this question fully and properly.

8. Which Law Governs Claims against One of the States/Separatists?
This question should be answered under private international law. A Dutch Court will apply Regulation EC/864/2007 (Rome II). The principal rule is the lex loci damni meaning the place where the damage occurred. It could be argued that court should apply Malaysian law as the victims were on board a Malaysian plane governed by Malaysian law at the time when they sustained damage. It could be argued also that the damage occurred outside the aircraft, in Ukrainian airspace. In that case Ukrainian law would apply. Finally, it would be fair to argue that Dutch law applies. Let’s say a breadwinner died in the crash. His or her family in the Netherlands, who relied on the deceased for their livelihood, suffers loss of income. A loss sustained in the Netherlands, although the cause of the loss lies in events in the Ukraine.  The same applies to losses of victims in Belgium, the UK and other EU countries.

9.  Are There Other Potentially Liable Parties?
The investigation might show that there are other potentially liable parties. Examples are companies responsible for making or authorising the flight plans or authorities that have the power to prohibit certain routes. The crash could be due (also) to mechanical failures, which could make the manufacturer liable. As mentioned earlier, mechanical failures are likely ruled out. However, it is too early for definitive conclusions.

Conclusion
The victims’ families could hold Malaysia Airlines liable for compensation of their loss, up to EUR 120,000 approx. per passenger. Any higher amounts can be claimed only if the airline has been found at fault. At this point no fault has been determined and there are other parties that might be held liable. Investigations will have to identify those parties and whether claims can be filed successfully. It is important that the competent court and governing law will be determined on a case-by-case basis. The many victims from various countries and the range of potentially liable parties make for a complex puzzle that can be completed only once the investigation has been concluded.
Let us hope that all parties involved will proceed with the utmost urgency and care to avoid any more suffering for the many affected.

Author: Antoinette Collignon

Discovery in the Netherlands

Discovery  in the Netherlands. Disclosure of documents in civil claims.

If a party needs documents from another party in the Netherlands article 843a Code of Civil Procedure Rules (DCPR) (right to inspection) might be a tool to gain access to these documents.

In short article 843a DCPR enables a party to gain insight in documents that are not at his disposal. For a claim under this article it is necessary that requirements mentioned in article 843a are met. The elements are as follows:

  • The claim has to regard existing documents
  • The documents must be at the disposal of, or in possession of, defendant
  • The documents must be sufficiently determined
  • The documents must bear relevance to a legal relationship in which plaintiff is a party
  • The plaintiff must have a legitimate interest in the inspection, a copy or extract (hereinafter jointly: copy) of the documents
  • Rejection of the claim only for serious reasons and
  • Rejection of the claim if in the interest of a proper administration of justice is also guaranteed without a copy.

If you need further information please contact Legaltree

New Dutch International Private Law & Non Contractual Obligations

If someone has had an accident abroad or is a victim of tort in another country it is important to determine which law is applicable. If proceedings are issued in the Netherlands the judges has to decide which law applies. As of 1 january 2012 a new Book 10 was added to the Dutch Civil Code in which the Dutch International Private Law is set out.  Title 14 of this book deals with the law applicable to non-contractual obligations.

Rome II
The new Book 10 of the Dutch Civil Code, title 14 refers to Rome II I Regulation (Regulation (EC) No 864/2007 of the European Parliament and the Council of 11 July 2007 on the law applicable to non-contractual obligations).

This not only includes tort, but also commitments arising from unjust enrichment (including undue payment), case detection and pre-contractual liability. Rome II is universally applicable. This means that any law specified by Rome II shall be applied whether or not it is the law of a Member State.

The exceptions: Hague Traffic Accidents Convention and Hague Products Liability Convention
Article 158 states that the application of Rome II does not affect the application of the Hague
Traffic Accidents Convention and the Hague Products Liability Convention. These conventions take precedence over Rome II (see also article 28 Rome II). This means that for cross border road traffic accidents and cross border product liability cases a Dutch court shall apply these conventions.

Rome II to apply to non contractual obiligations outside its scope (Article 159)
Before Rome II the Dutch court applied the WCOD (the Act regarding Conflict law of Non Contractual Obligations) in cases other than cross border road traffic accidents and product liability cases. The difference between the rules of the existing Dutch WCOD and Rome II is that the basic rule of WCOD is the lex loci delicti, with some exceptions, while
the general rule of Rome II is the lex loci damni (the country where the damage occurs), with some exceptions.
The substantive scope of Rome II coincides to a large extent with WCOD, with the exception of torts mentioned in Article 1 paragraph 2 of the Regulation including the liability for nuclear accidents and liability for breach of privacy and personality rights, such as defamation and libel. In these cases the Dutch WCOD still applied (unless other conflict
law applied).

Because it was deemed undesirable that different regimes exist next to each other, it was decided to apply Rome II mutatis mutandis to unlawful acts outside the scope of Rome II, provided that they are regarded as a tort. This means that there is now only one regime for cross-border torts in the Netherlands. Whether this is a good choice remains to be seen as in the drafting of the Rome II these torts have been excluded with reason.

Exceptions of Article 1 paragraph 1 Rome II
There is another category of non-contractual obligations from sources other than tort which neither fall under Rome II, nor under the WCOD, namely the non-contractual obligations mentioned in the list of exceptions in Article 1 paragraph 1 Rome II. This category does not fall under the Article 159 of Book 10 BW.

Transitional rules
The transitional law is governed by the Rome II treaty and is applicable to non contractual obligations from 11 January 2009.

New Dutch International Private Law (general principles)

If a client in a cross border case decides to issue proceedings in the Netherlands it is important to know which private international rules a Dutch court will apply. After all these rules determine which country’s law should apply.

The new Book 10 of the Dutch Civil Code  includes a number of general principles (Articles 1-5), and articles that can correct the initial referral result (Articles 6-9). Articles 10-14 contain a number of important legal concepts such as choice of law and form of legal acts. Finally, there are some provisions relating to the nationality of a person and the personal status of a refugee (Articles 15-17).

All these rules are common rules which Dutch courts already applied but which are now codified.

Article 1: Priority of regulations of international and community law
For example, in article 1 priority of regulations of international and community law over national rules is included. Although this seems unnecessary, the minister of Justice was of the opinion that it was desirable to codify this principle. It would be useful for lawyers and would provide clarification. Furthermore it is also included in many foreign codifications of private international law.

Article 2: Application ex officio
Article 2 provides that rules of private international law and the law designated by rules should automatically apply. The court may, and thus need not wait until one of the parties invokes applicability of foreign law.
In case a judge considers application of another law, while parties have not indicated possible application of this law during court proceedings, he is obliged to give parties the opportunity to comment thereon.
Article 3: Procedural rules
As indicated Book 10 contains no rules of a procedural nature. Article 3 only provides that Dutch law shall apply to the rules of procedure of legal proceedings before Dutch courts.
Article 5: No renvoi
Renvoi is, briefly stated, the practice in which private international law of the forum that was chosen according to the international private law rules of the other country also applies. This could lead to the result that according to the private international law of the chosen forum the law of another country applies. Under Dutch law there is no place for renvoi.
Article 5 therefore states that the application of the law of a State means the application of the rules of law in that State, with the exception of its private international law.

Article 8: General exception
In article 8 a general exception is included. It offers a correction for cases in which application of a rule of conflict is based on a presumed connection which is only limited and where there is a closer relationship another law.
This involves a situation where, given all the circumstances of the case, apparently the presumed close relationship ‘exists only in a very small extent “and” in which another country has a much closer connection.
The law designated by the conflict rule remains inapplicable and instead, the law with which the much closer connection can be used. This article should be applied by the court ex officio. Of course sufficient facts must be stated by parties that lead to application of the exception clause. If the court is considering the use of this clause, and it has not been mentioned during proceedings, parties must be given the opportunity to give their opinion.
The provision only applies to statutory rules and can not set aside regulations of international and community law.

Article 10: Choice of Law
Article 10 provides that where a choice is allowed, this must be made explicitly or otherwise be sufficiently clear.
This rule was developed in international contract law and is for example enshrined in article 3 Rome Convention and Article 3 Rome I. The idea is that parties engaging in international agreements have the freedom
to choose which law they want to apply. In other treaties, such as Rome II (Article 4), the possibility of choice is
also included. It is therefore codification of existing law.

Article 14: Limitation and lapse of claims
Article 14 provides that whether a legal claim has prescribed or lapsed shall be determined pursuant the law applicable to the legal relationship giving rise to such a right or legal claim. This is in accordance with Dutch case law and with prevailing doctrine. (Dutch Supreme Court of 27 May 1983, NJ 1983, 561).

New Dutch international private law (introduction)

If a client in a cross border case decides to issue proceedings in the Netherlands it is important to know which private international rules a Dutch court will apply. After all these rules determine which country’s
law should apply.
As of 1 January 2012 the Dutch have a new book 10 of their Civil Code. This book is a codification and consolidation of existing Dutch international private law. Although little seems to change it has made Dutch international private law much more accessible. In this blog I will discuss the content of Book 10 and several general articles and
Title 14 of Book 10, on the law applicable to non-contractual obligations.

A number of existing regulations regarding conflict law have been
brought together in Book 10.
Book 10 contains fifteen titles:
Title 1: General provisions,
Title 2: Name,
Title 3: Marriage,
Title 4: Registered partnership,
Title 5: Parentage,
Title 6: Adoption,
Title 8: Corporations,
Title 9: Agency,
Title 10: Law of property,
Title 11: Law of trusts,
Title 12: Inheritance law,
Title 13: Contractual obligations,
Title 14: Obligations from a source other than contracts
Title 15: Some provisions with regard to maritime law, the law of inland
shipping and aviation law.

The legislation encompasses mainly rules of reference that indicate which national law should apply in private legal relations with cross border or foreign elements. Reference is made to several European treaties and regulations.
The act doesn’t contains rules of a procedural nature, such as rules onjurisdiction and rules relating to recognition and enforcement of judgments. These rules are included in the Dutch Civil Procedure Code.

Pain and suffering awards in the Netherlands

If you have had an accident in the Netherlands and suffered injuries and provided that there is a liable party from which you can claim damages  under Dutch law one of the questions you will ask yourself could be: Am I entitled to an award for pain and suffering?

According to Dutch law (article 6:95 in combination with article 6:106 BW)  there is a limited right to non-pecuniary damages.  The main source for these damages is article 6:106 Dutch Civil Code. According to article 6:97 Dutch Civil Code the judge is entitled to quantify the total amount of damages suffered .

Where an injured person suffers mentally from the consequences of physical injuries sustained, there are no specific requirements about the degree of seriousness of the mental suffering. If a victim has only suffered psychiatric injury, the threshold is that there is a recognizable psychiatric illness. Annoyance of greater or lesser mental discomfort will not suffice.
There is a wide margin of appreciation deciding on the amount of non-pecuniary damages.  The victim doesn’t need to specify to what extent he suffered non-pecuniary damages nor is he obliged to demand a specific amount. It is however wise to state all relevant facts and circumstances.
The Dutch Supreme Court has set out some basic rules. First of all a judge has to look at all circumstances of a particular case .  More specifically a judge should consider the injuries and the consequences of the injuries on the victims life. The injuries and disabilities are particularly relevant, as well as the age at which the accident occurred. As a rule the more severe the injuries and the younger the victim, the higher the damages awarded for pain and suffering.
Furthermore the judge  has to pay attention to case law in similar cases. This process is simplified by the collection of abstracts in a special edition in the review of traffic law ‘ Verkeersrecht ‘, the ‘ Smartengeldbundel ‘  which provides index-linked awards.  Judges can also refer to awards for non-pecuniary damages in other countries, albeit that the award can no be solely determined on that basis. A judge may also look at the nature of the liability.  There is no  absolute limit on the amount of non-pecuniary damages that can be awarded. There are no caps set by law or baremes. Awards are among the lowest in Europe.

An important thing to know is that a victim should explicitly claim an award for pain and suffering. If he or she fails to do so and dies the heirs can’t claim these damages.

If you need further information about Dutch law on negligence and damages you can contact Antoinette Collignon at antoinette.collignon@legaltree.nl

Amsterdam, 6 March 2011

copyright Antoinette Collignon

Dutch International Private Law

This is a link to the European Commissions Judicial Network, which contains relevant information on Dutch International Private Law. You can find information on sources of law, the application of rules of conflict, and the rules of conflict.

Award for damages in the Netherlands

An accident causing permanent injuries has far-reaching implication for a victim’s personal life. If an accident occurs when working or traveling in the Netherlands and Dutch law is applicable damages will be awarded according to Dutch law, even if  the victim lives in another country. The rules for damages are set by law and case-law.

This blog gives a brief description of compensation which can be claimed from the liable party.

Principle of full compensation

The principle of full compensation is the basic principle underpinning the law of damages in The Netherlands.  A person liable shall put the victim – as far as possible – in the position he would have been had the accident not occurred.

Damages

A victim can claim general and special damages.  Special damages, or pecuniary damages are all costs incurred as a result of the accident as well as losses, such as medical expenses, domestic care, travel expenses, costs of nursing and care, change to one’s house but also lawyer’s fees.  A victim needs to substantiate his claim by presenting invoices, bills, salary slips and so on.

Pain and suffering

General damages or pain and suffering are determined by  equity, taking all circumstances into consideration.
 The Dutch Supreme Court has set out some basic rules. First of all a judge has to take into consideration all circumstances of a particular case.  More specifically he should look at the injuries and the consequences of the injuries on the victims life.  Furthermore the judge  has to pay attention to case law in similar cases. This process is simplified by the collection of abstracts in a special edition in the review of traffic law ‘ Verkeersrecht ‘ , the ‘Smartengeldbundel’ which is updated every three years and provides index-linked awards.  Judges can also refer to awards for non-pecuniary damages in other countries, albeit that the award can not be solely determined on that basis. A judge may also take into consideration the nature of the liability.  There is no  absolute limit on the amount of non-pecuniary damages that can be awarded. There are no caps set by law.

The injuries and disabilities are particularly relevant, as well as the age at which the accident occurred. As a rule the more severe the injuries and the younger the victim, the higher the damages awarded for pain and suffering.  The damages awarded for pain and suffering are determined in negotiations with the insurer or by the court if the parties fail to reach agreement. Awards are among the lowest in Europe.

A victim should explicitly claim an award for pain and suffering. If he or she fails to do so and dies the heirs can’t claim these damages.

Lawyer’s fees

A distinction is made between costs of a procedure and the out of court lawyer’s fees.
During negotiations, according to article 6:96 BW costs of legal assistance and other disbursements  are to be compensated in full. They should be reasonable and reasonably made. This means that it should be reasonable to incur  these costs and their extent should also be reasonable.

In case of court proceedings other rules apply. According to article 241 of the Dutch Code of Civil Procedure (Rechtsvordering) legal fees are awarded on a fixed basis. The courts use tables. The awards do not cover the real lawyer’s fees.

Personal injury lawyers generally charge on an hourly basis. They are not allowed to charge on a contingency or conditional fee basis. If liability is accepted this is not necessary as fees are part of damages incurred.

For further information on Dutch law on negligence and damages contact Antoinette Collignon, antoinette.collignon@legaltree.nl

copyright Antoinette Collignon  2011