Role play in the Dutch legal system

lawyer and judge

Is it possible to be both a substitute justice and a lawyer?

We review the judicial roles where substitute judge and lawyer are fulfilled by one and the same person in the Dutch legal system, as practiced since 1996. These roles are fundamentally incommensurate and their objectives cannot reasonably be served by a sole representative. Distinct loyalties sworn in either role inevitably leads to compromised actions, decisions and statements. In effect, it sets up a legal system that is hard-wired to produce perjury. This Dutch invention appears to be unique, and is not known in neighbouring countries, all of which have legal systems founded on the Napoleonic Code. Its legal foundation is questionable.

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  1. FYI I have been litigating in the Netherlands and in the US Federal Court regarding Intellectual Property. In the NL the system is rather wishy-washy. Some attorneys are part-time substitute justice. As such a Dutch judge is forbidden to make direct telcon with attorneys. However, he can call upon a substitute justice for some topic, and then also discuss something else. The substitute justice can use facilities as parking lot, library, filing cabinets etc. Moreover, he can contact the staff of the record office/ registry.
    While litigating in the Hague I have experienced that a substitute justice got the concept of the verdict. Then you wonder, if this substitute justice has maybe written part of the verdict ? Also I have experienced that justice EJ Numann pretended that I had stolen secret know-how of my former employer. However, this was even denied by this former employer on the spot. Nevertheless that the Short Proceeding – and it took some 17 years (and millions) to have corrected at last by the Hague Court of Appeal.

    In the Netherlands it is not outlawed to bribe somebody in the course of acquisition of larger project. However, it is not allowed to bribe civil service staff. However, if a party would consider bribing a judge, then the most practical way is via an attorney/ substitute justice. This person could check in diplomatic way, if the relevant judge is interested in a million dollar bribe.

    Usually the Dutch courts for Intellectual Property are 3 person: 1 senior judge, 1 junior judge/ or RAIO (junior trained to be) and 1 substitute justice.We all know that the senior judge is making the decisions, so you only have to bribe this person. Moreover, in the Netherlands we don’t have such a rigorous system of verbal transcription of the hearing(s). Frequently a justice is giving his personal summary of the hearing – so emphasizing how he would like to see it. So this is a rather tricky part of the litigation. BTW I have experienced for major case that presiding judge of the Hague Distric Court asked before the hearing, if the registrar was necessary. Yes, I directly made clear that I wanted to see somebody taking notes. However, this judge JHPJ Willems did not want to work with a registraer……

    Many people (prof. Quaedvlieg, Hugenholtz, Dirk Visser…) have the impression that the Dutch administration & judges like to extend/ stretch the Dutch Authorright interpretation, so that multinationals will choose The Hague for their I.P litigation. Examples: Kecofa vs Lancome and Technip vs Goossens. See: Research Handbook on the Future of EU Copyright P. 72


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