Article 21 of the Dutch Code of Civil Procedure vs. American discovery: navigating the path to justice
Michiel Teekens
by Michiel Teekens
In the quest for justice, legal systems worldwide adopt mechanisms to ensure that litigation is conducted with the utmost fairness, transparency, and access to vital information. Two such prominent mechanisms have emerged from the Dutch and US legal systems. The Netherlands emphasises a duty of truthfulness and completeness as dictated by Article 21 of its Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering, or 'Rv'). In contrast, the United States centres its approach around the discovery process. This article delves into the nuances of these distinctive mechanisms, highlighting their respective contributions to the tapestry of justice.
Central to the Dutch judicial ethos is Article 21 Rv, which requires parties in a civil lawsuit to present all facts fully and truthfully. This mandate encompasses both favourable and unfavourable details, thereby setting the stage for a well-informed deliberation. In the adversarial arena of the US legal system, the discovery process stands out. Before any trial, parties are entitled to obtain evidence from their adversaries. This systematic approach, encompassing tools such as depositions, interrogatories, and document requests, ensures that all sides enter the courtroom armed with relevant knowledge, thereby reducing the element of surprise.
Some initial comparisons
The Dutch emphasis on immediate full disclosure by the parties aims for a streamlined legal process without the necessity of initiating separate proceedings. However, important details can be overlooked. In comparison, the US discovery process, while potentially lengthy, does ensure a deep dive into all facets of evidence, promoting thorough preparedness.
The inherent simplicity of the Dutch approach may lead to more predictable litigation expenses. In contrast, the exhaustive nature of American discovery can sometimes escalate costs, given the extensive back-and-forth in evidence gathering. In addition, discovery proceedings could also be time consuming.
Both systems are rooted in principles of fairness and representation. While the Dutch framework proactively fosters a culture of truthfulness, the American approach champions transparency through evidence solicitation and scrutiny.
Non-compliance is not without repercussions in either system. Dutch courts may impose serious sanctions for breaching Article 21 Rv, including the far-reaching claim or defence dismissal. In the US, non-adherence during discovery can result in fines, evidence exclusions, or other punitive measures, also with a far-reaching impact.
While Article 21 of the Dutch Rv and the American discovery process employ different strategies, their shared goal remains unwavering: to uphold a framework where justice thrives on transparency, complete information, and ethical representation. Each system, in reflecting the cultural and historical nuances of its origin, contributes uniquely to the universal pursuit of justice.
GGI member firmTeekensKarstens advocaten notarissenLeiden, Alphen aan den Rijn, Amsterdam, The NetherlandsT: +31 71 535 80 00Law Firm Services
TeekensKarstens advocaten notarissen (TK) is a full-service Dutch law firm with extensive experience in the field of international law. TK has established specific international teams to provide international clients with tailor-made services and information.
Michiel Teekens is a Partner with TeekensKarstens advocaten notarissen (TK). He is an international corporate and commercial litigator and Chair of the International Law team of experts in TK. He also serves as Global Chair of the GGI Litigation & Dispute Resolution (LDR) Practice Group. Contact Michiel.
