Lectures Commercial Dispute Resolution
University of Groningen 2021
Extended lecture notes for the weeks 1-7. Really good preparation for the assignment at the
end of the course. Good overview of everything you need to know.
Week 1: Introduction, General principles
Week 2: Jurisdiction I
Week 3: Jurisdiction II
Week 4: Arbitration I
Week 5: Arbitration II
Week 6: Court litigation from a Dutch Perspective
Week 7: Recognition and Enforcement
,Lecture 1: introduction & principles
We are going to talk about dispute resolution, disputes arising from private law, more
specifically: property, contract and tort law. One of the cases we will look at is the Mare
Nostrum case. In the end all the cases come back to Mare Nostrum.
In the end all this case law, is about general principles of litigation. So, in the case of Kleyn v
the Netherlands, although it originates from administrative law, it can also be relevant for
civil law (private law). This is the reason these case laws are recommended.
Few examples:
- Aerey vs Ireland = family law
- Kleyn vs Netherlands = administrative law
- Krombach/Bamberski = criminal law
Three steps in private law court litigation
1. First step = how to establish relevant jurisdiction
2. Second step = how do proceedings take place
3. Third step = how to enforce verdicts in other jurisdictions
For private law we can divide the world in common law and civil law jurisdictions. There are
many differences between these two. But there are also some things that are more or less
the same. When it comes down to court litigation in private law matters, there are some
universal recognized principles that are maintained in both types of jurisdictions. Those
principles are only principles, it's not law/treaties etc. So, it is soft law.
Unidroit Principles (the universally recognized principles): effort to bridge the gap between
common and civil law systems. These are general principles, when you translate it to your
home country, you will see that most of them are maintained. You can place most of the
principles in home main system.
A few examples:
- Structure of proceedings (principle 9 of Unidroit principles): is about the second step:
how do proceedings take place. We won’t be going into the second step, because it
differs per country.
But this is the main model:
Three phases
At a general level, these phases are the phases in civil procedural throughout the world.
These principles are soft law, they are not applied in court, but they are used by
governments to develop the national systems of civil procedure. When it comes down to
, invoke a principle in court, they need to be written down in hard law. The following are
these can be found in article 6 of the European Convention of Human Rights (is not the same
as EU) and also in article 14 in the International Convention on Civil and Political rights and
article 47 of the Charter of Fundamental Rights of the EU.
The important principles (of litigation)
- Independence and impartiality of the judiciary (principle 1 Unidroit)
- Right to be heard (principle 5 Unidroit)
- Prompt rendition of justice (principle 7 Unidroit)
Independence and impartiality of the judiciary (P1)
These are to terms, independence and impartiality are two different things.
- Independence means independence regarding the other state powers, the legislator and
executive. So, the judiciary has to be independent from the other two.
Kleyn et al./The Netherlands: is about Dutch administrative proceedings. The case
was about a new route in the country, which connected the port of Rotterdam to
Germany. In order to build this, there had been a proposal for the law. When the
government in the NL wants to propose this, it has to seek advice of the Raad van
State (Council of State). However, the Raad van State is also the highest court in
administrative affairs. Here are two benches in the RvS, the advisory and judiciary
bench. The advisory bench gave the advice on this new port route. A couple of
people rejected this, because they said it is not independent. The judicial RvS
rejected the complaints. Then they went to the ECHR and said it was not a fair trial,
because the same council had advised on the Bill and later rejected their claim, so
the same RvS did both things. In the end the ECHR held that there was no violation of
Article 6. It is a very technical decision, because the court said that the decision about
the exact routing of the rail roads was not part of the advice the RvS gave, so not
about the same decision, so in this case there was no violation. Noted: there were
dissenting opinions. In this decision it is mentioned when judiciaries are independent,
it is summed up.
- Impartial means impartial regarding the parties in proceedings.
Micallef/Malta: in the bases the case is simple, two neighbors in an apartment block,
of which the upper one used to hang out her washing to dry over the balcony. The
lower neighbor complained and said you are infringing my property right and went to
court. In the end with the Court of Appeal: the president of the Court of Appeal, or
the Chief in function, was a relative (brother) to the attorney that the claimant had
(lower neighbor). So, there was a direct family link between one of the lawyers and
one of the judges (the President). The ECHR concluded that this was not an impartial
judge.
The ECHR distinguishes between objective and subjective impartiality. There is a
subjective and objective test. The subjective test deals with the question whether or
not the judge literally expressed or behaved impartial. The objective test is about are
there any circumstances from which a justified feeling from one of the parties could
be deranged/conclude that this specific judge is not impartial, but partial to the other
party. In this Micallef/Malta these two tests are explained.
