NL – Judicial remedy, 2nd NAP

Pillar III

Improving the provision of information to affected parties

“Ideally, human rights abuses, including violations of labour rights, should be addressed where they take place and effective remedy is offered locally. Yet in some circumstances a mechanism in the Netherlands may be the best recourse, for example if there is no effective local mechanism or if a Dutch enterprise is involved in the violation. However, victims and their representatives may not always have a clear picture of the possibilities for remedy in the Netherlands. Consultations with civil society organisations on the revision of the NAP made it clear, for example, that affected parties were not always aware of the possibility of accessing regular legal aid in cases of international liability. The government will produce an accessible digital guide describing the judicial and non-judicial remedies available to parties abroad who have been affected by Dutch companies (through their international supply chains). This guide will clearly describe the possibilities for initiating a judicial or non-judicial process and what support, such as legal aid, is available. The guide can follow Germany’s example. In response to consultations, the guide will where possible take account of the additional hurdles faced by marginalised groups and unequal power relationships. This will include a gender perspective.” p. 63.

ACTION POINTS PILLAR I	Aim	Responsible party	Timeline
Improving information provision to affected parties
Develop and actively disseminate an accessible digital guide for rightsholders, in several languages	Improve information on the options for access to remedy in the Netherlands.	BZ	2022-2023

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Pillar III

Improving access to judicial mechanisms

Criminal law “Criminal law includes penal provisions for the violations of specific RBC norms such as corruption, soil pollution, human trafficking and money laundering, as well as specific penalties for infringements of environmental legislation. In all cases the company’s duty of care is relevant to determining whether criminal liability has been incurred. In the Netherlands the initiative in launching criminal proceedings lies with the Public Prosecution Service. However, the NBA concluded that there are few criminal proceedings against Dutch businesses in cross-border cases.68 The Public Prosecution Service did recently start criminal proceedings under the EU’s Timber Regulation after a Dutch company evaded enforcement under administrative law.

Legal aid

Access to the Dutch legal system depends partly on the costs to the affected parties of starting civil proceedings. Discussions with human rights lawyers and NGOs representing victims have made it clear that they know little or nothing about existing legal aid opportunities. Regular legal aid can help with legal costs. Non-Dutch victims can also have recourse to it when claiming damages against parent companies in the Netherlands. The government will pursue efforts to increase knowledge of and access to current legal aid options, and will monitor how often requests for legal aid in international liability cases are rejected and on what grounds. An evaluation in 2025 will thus be able to state whether the current legal aid options form an obstacle for rightsholders.

Access to civil law

The Class Action (Financial Settlement) Act (WCAM) entered into force on 1 January 2020.70 This Act makes it possible to settle damages collectively in joint proceedings. Groups of victims of human rights violations caused by Dutch businesses can use this law, making it unnecessary to litigate individually to claim damages. An evaluation of the WCAM is planned for 2025. Until then the law will be monitored annually and discussed with stakeholders including representatives of affected parties involved in international liability cases. The annual monitoring process will start looking at international liability cases which were declared inadmissible. The 2025 evaluation will also consider whether access to Dutch law has changed for the worse for organisations supporting victims of human rights abuses.

Applicable law: Rome II

If a court considers itself competent to rule on a case of international civil law, the question arises which law is to be applied. The Rome II Regulation states that the applicable law is determined on the basis of where the damage has occurred. In cases of human rights violations abroad the applicable law is thus the law of the country concerned. The NBA expressed concern that if foreign law applies in a dispute, victims may have recourse to fewer remedies than under Dutch law. The European Parliament has also called for Rome II to be amended to address this problem. A study commissioned by the European Commission into experiences, problems and the application of the Rome II Regulation was published in October 2021.74 It is up to the European Commission to review the Regulation. The government would support a broad review of Rome II, which should include discussions on the applicable law in cases of human rights violations in international value chains.

Grounds for jurisdiction of Dutch courts

The law of international jurisdiction often takes as its point of reference the jurisdiction of the court in the defendant’s country of domicile. This is also the case for Dutch and European rules on international jurisdiction. Another point of reference for Dutch and European rules on international jurisdiction is the place where the human rights violation took place or where the immediate damage occurred. Therefore, if a company established in the Netherlands is named in a case pertaining to a human rights violation the Dutch courts are competent to hear the claim. This is also the case if the violation took place outside of the Netherlands. The Dutch court is not necessarily competent to hear the complaint if the violation concerns a company established outside the Netherlands and if the violation took place and damage occurred outside the Netherlands. Some countries, however, do not have an accessible or adequately functioning legal system and victims thus risk being deprived of legal remedy. The government is actively pursuing this concern in international bodies such as the Hague Conference on Private International Law. The NBA also notes that in cross-border civil proceedings that have thus far been pursued in the Netherlands, the defendants included Dutch partners as well as subsidiaries based in other countries. As far as is known no legal proceedings have as yet been conducted in the Netherlands involving damage caused by partners in the value chain of Dutch companies other than foreign subsidiaries, that is, non-group company liability. In this connection the Council of Europe has made recommendations about the grounds for jurisdiction of national courts, and these have been enshrined in Dutch law. The fact that no proceedings have taken place may indicate that the rules surrounding this are unclear and that claimants do not consider such cases to be winnable. In line with the NBA, the government is planning to review how these grounds of jurisdiction are applied and whether it would be appropriate to tighten them up in instructions, for example.

Amending the law of evidence

The NBA also notes a number of practical obstacles to legal access to remedy. One such potential obstacle is the parties’ possible unequal access to information, with victims requiring access to internal corporate information as a prerequisite to taking legal action. Related to this is the burden of proof in liability cases, in which victims may find it difficult to obtain the evidence necessary for their case. The NBA also notes that the high costs associated with complex international cases may form an obstacle to starting proceeding. The House of Representatives is debating a bill that proposes simplifying and modernising the law of evidence. The bill aims to improve access to justice by removing, where possible, the obstacles caused by limited information and lack of evidence in establishing and proving the relevant facts, to enable litigants to properly substantiate their legal claims. To this end both parties will be required to collect and share all relevant information as much a possible before the start of proceedings. If one of the parties does not have access to documents that are significant for its case, it can request access to them, if necessary through the court, from opposing or third parties. This improved right of inspection is an important part of the bill. Clarifying access to information which falls under the right of inspection should remove any disparity between parties in access to information concerning relevant facts which infringe on the principle of a fair trial. At the same time the government is wary of documents being shared under the auspices of the right of inspection which are not relevant to the proceedings or in which the requesting party does not have a clear interest. The right of inspection is therefore necessarily bound by conditions which primarily serve to prevent ‘fishing expeditions’ for information in which there is no clear interest or whose existence is unknown. The requesting party will therefore have to clearly substantiate its request to inspect. This requirement ensures that there is an appropriate balance between the interests of the party requesting the information and those of the party in possession of it. The bill does not introduce any amendments to provisions relating to the law of evidence on the burden of proof or on the division of the burden of proof. Currently the burden of proof (and the risk that the court will not accept the facts as true) lies with party stating the facts. The court, however, already has several means at its disposal to take into account the parties’ unequal access to information, for example by imposing more stringent demands on the party with greater access to knowledge or by proceeding from a factual presumption that the stronger party must then refute rather than one that the party with a knowledge deficit has to assert and prove. By customising this process the government feels that it has addressed the concern expressed in the NBA and the UNGPs that the burden of proof is a potential hurdle to accessing remedy.” pp. 73-77.

ACTION POINTS PILLAR III	Aim	Responsible party	Timeline
Expanding Access to Judicial Mechanisms
Conduct annual monitoring of the WCAM and carry out an evaluation in 2025 looking specifically at access to Dutch courts by foreign rightsholders.	Monitor access to Dutch law by foreign rightsholders	J&V	From 2020-2025
Make efforts at European level to have human rights included as a ground for exception to the Rome II Regulation.	In due course revise the Rome II Regulation to include human rights as a ground for an exception with the aim of establishing the law of the European member state involved as the applicable law	J&V	2022-2030
Investigate how grounds for jurisdiction are applied.	Create clarity about grounds of jurisdiction based on forum necessitatis.	J&V, BZ	2022-2023
Improve the provision of information regarding opportunities and monitor the number of applications in international liability cases with a human rights component	Raise awareness of regular legal aid options and get a clear picture of the current use of such aid.	J&V, BZ, Legal Aid Council	2022-2025

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