Rotterdam’s Maritime Chamber is ready for international action
Rotterdam has a unique position in the Dutch legal system. Since 2017, the district court in the city on the Maas has had exclusive authority to give rulings in cases involving shipping. Nevertheless, a clause in many contracts ensures that the majority of hearings are still held in the capital of maritime law: London. “That's a pity, because litigation in Rotterdam saves a great deal of time and money.”
Sufficiently skilled
In order to keep its expertise level up, the Maritime Chamber must also have sufficiently skilled people available to allow it to respond to personal or case-related developments. This is also a requirement if internal contradictions are to be covered. The agreements made in 2016 therefore state that the Maritime Chamber consists of at least four commercial court judges and four legal assistants who have the requisite expertise. The judges will be expected to commit to working for the Maritime Chamber for a lengthy period (at least 6 years). Furthermore, the judges must follow specialized training during the first two years and the judges will be expected to take part in international congresses. In addition to the commercial court judges, the Maritime Chamber consists of a civil law judge, two judges in interlocutory proceedings and two subdistrict court judges plus legal assistants to support these judges.
Quick, effective and affordable
The number of maritime cases handled by the Rotterdam district court is increasing. Judgements were given on the merits in 27 proceedings in 2018; that number was 38 in 2019. In addition, dozens of summary proceedings and sequestrations on ships are handled every year. Nevertheless, the number is still nothing compared to London. “There are 3000 to 3500 arbitration hearings heard there annually in addition to the many cases that come before the courts in London. This is because many contracts have a standard clause that says legal rulings should be made in London, often via arbitration. This can mean that two Dutch parties have to go to London whereas the case could perfectly well have been handled in Rotterdam. They are free to choose, but they do have to do take it into account when drawing up a contract.
In the rush of closing a deal, people often don't read the small print,” explains Marcel Verhagen, who has been a partner at DOCK Legal Experts since 2016. Verhagen, who earlier founded the Jumelet Verhagen agency together with Ton Jumelet, has been working since 1992 as a ‘wet lawyer’ in the Rotterdam port area. In addition to his work as a lawyer, Verhagen is the chairman of UNUM (formerly TAMARA), a foundation that promotes and facilitates arbitration and mediation. This organization does a great deal of lobbying to bring more cases to Rotterdam. “As lawyers, we want to be able to compete with London. The question is whether the customers want that. The customers want it to be quick, effective and affordable. That's why we already started e-arbitration with TAMARA. We've built a platform where the parties and the arbitrators can put their dossiers online. All the documents are uploaded and hard copies are no longer required. When we started doing that in 2006, it was pretty revolutionary. Some arbitrators then said that the digital stuff was all well and good, but I want it as a hardcopy too,” says Verhagen.
Digital courtroom
The electronic way of arbitrating works very well, according to Verhagen. “We were in the vanguard at the time and we’re still one of the pioneers. Litigation by electronic methods is being picked up more and more widely internationally, according to Verhagen, but UNUM is the only arbitration institute that operates what is referred to as an ‘opt-out’ system: if the parties do not want to proceed with e-arbitration, they have to root out explicitly. At other institutes, e-arbitration is an option. In addition to e-arbitration, UNUM is always looking for innovative options for implementing the process as effectively as possible. “We’re also currently working on developing a digital courtroom,” adds Verhagen. “This will allow interim hearings to be held in the digital courtroom without the parties having to appear in person.
For international parties, it’s also interesting that the proceedings can be held in English.” In addition to the possibility of holding the proceedings entirely electronically, the Netherlands has other benefits compared to London, Singapore and New York, according to Verhagen. “We don't have disclosure, for instance. In countries that do have that rule, such as the United Kingdom and the United States, lawyers are obliged to hand in all documentation if the court or the arbitrators decide that is needed. You aren't allowed to leave any documents out: everything has to go to the arbitrators or the court. That means that the cases are really long-drawn-out and the bills are gigantic, although many of the documents are not relevant for the judge’s ruling. A lawyer in the Netherlands is required to inform the judge fully, of course, and they must include all relevant documents. But there’s no obligation to hand over absolutely everything.”
Another advantage: in the Netherlands, lawyers are also always law graduates. That doesn’t have to be the case in the United Kingdom, where you can have solicitors and barristers. That means that you mostly need two people for a case and that drives the hourly rates are a lot, reckons Verhagen. “In the Netherlands, the procedure is usually based on documents – the vast majority of it is on paper. In England, the witnesses almost always have to be heard. Litigation under English law can really cost you a fortune.”
The country of settlements
Verhagen himself does not often go to court anymore. “We try to settle cases amicably at an early stage. If a settlement can’t be reached, you’re then left with going to the court or arbitration, of course, but a settlement is often the best solution for the parties.” Resorting to the courts is however needed in many cases, such as secretary of a ship or limitation proceedings, for instance. Cases like those are all grist to the mill at the Rotterdam district court. Although cases are handled relatively quickly and efficiently in the Netherlands, another round of improvements is still possible here, according to the lawyer. “There can sometimes be six months between the summons and the hearing. That’s sometimes too long. It could be done way more quickly, especially now that it can all be done digitally.”
Rules
The lawyer is currently seeing an increase in the number of cases that are about infringements perpetrated by the captains. “Captains are having to comply with increasing numbers of rules. That’s good, but it does sometimes go too far: a captain accidentally puts a tick in the wrong place and gets prosecuted. Sure, there are some bad apples. But does it have to be so tough? If it's not critical, can't we simply say that someone somewhere accidentally ticked the wrong box? Without starting proceedings against a captain?” That’s this lawyer’s opinion. Although settlements are reached in many cases and fewer and fewer are being dealt with in the courts, Verhagen is very satisfied with the Maritime Chamber in Rotterdam. “The court is aware of the importance of shipping and attempts to facilitate the parties as much as possible. All cases can be conducted in English and the judgements are delivered in English as well if so desired. I do hope, though, that the court manages to retain its level of expertise in maritime matters and that there will be enough discussions with the practical side, so that those judges know just what it's like on board a ship like that.”
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