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Exhibition claims under Dutch civil procedural law

Nieuws 15 March 2018
General court order to produce exhibits
Under article 22 of the Dutch Civil Procedure Code (''DCPC''), the judge can at any stage of the proceedings order (one of) the parties to clarify its statements and to produce documents relevant to the proceedings. This discretionary power of judges is subject to few clear-cut procedural rules. The obligation for judges to state reasons for (not) using this discretionary power is limited, as are the possibilities of parties to enforce judges (not) to use it. Parties can request a judge to use his discretionary power, however judges are not obliged to deal with such requests in detail, let alone to grant them.

The order to produce documents can be laid down in interlocutory decisions, letters, or in an order of the cause list judge (‘’de rolrechter’’). Furthermore, an order to produce exhibits can also be given during oral proceedings.

Parties may only refuse to carry out an order to produce exhibits for compelling reasons, for instance that the documents concerned are confidential. It is up to the judge to decide whether such refusal is justified. As a compromise, the oral proceedings can be held behind closed doors or under the obligation of confidentiality. In case the judge deems the refusal unjustified, he may draw the conclusions he considers appropriate.

Court order to open accounts that a party is required to keep according to the law
A more specific obligation to produce exhibits to the general article 22 DCPC is laid down in article 162 DCPC. Under article 162 DCPC, the judge can both at the request of (one of) the parties and on his own initiative order the disclosure of accounts and documents that companies and legal entities under private law are required to keep according to the law. Again, this is a discretionary power of judges, resulting in a limited obligation to state reasons for (not) using it.

In contrast with article 22 DCPC, an order to produce exhibits under article 162 DCPC can only be laid down in interlocutory decisions.

Following an order to produce exhibits under article 162 DCPC, the judge himself will first inspect the documents, thereafter deciding which documents – if any – will be made available for inspection to the opposing party.

No mention is made of lawful grounds for refusal of an order under article 162 DCPC, however, it is plausible that the exception of article 22 DCPC (refusal for compelling reasons) applies to article 162 DCPC. Again, it is up to the judge to decide whether such refusal is justified and as a corollary what conclusions he deems appropriate in light of the refusal.

Ultimately, it must be noted that under paragraph 3 of article 162 DCPC judges may on their own initiative order the exhibition of accounts and documents subject to a pecuniary penalty in case of proceedings regarding the annual accounts of (one of) the parties.

In case of any questions in relation to this article, please contact Max Luiten or any of the other attorneys of our Corporate & Commercial Litigation department.

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