https://www.youtube.com/c/WorstPerson/videos
Thursday, October 29, 2020
Thursday, October 22, 2020
Thursday, October 8, 2020
New International Commercial Court Netherlands Aug. 11, 2017) On July 18, 2017,
New International Commercial Court Netherlands
(Aug. 11, 2017) On July 18, 2017, Stef Blok, Minister of Security and Justice of the Netherlands, submitted draft legislation to the Dutch House of Representatives (Tweede Kamer) on the establishment of a new commercial court that would have the authority to render judgments in English on complex international trade disputes involving the Netherlands. (Legislative Proposal on Netherlands Commercial Court Submitted to Dutch House of Representatives, Ministry of Security and Justice website (July 18, 2017).)
According to the Ministry of Security and Justice, “[t]here is an increasing need in the Netherlands for dispute resolution in English,” given the wide use of English “in international trade and drawing up contracts, as well as in correspondence between legal, fiscal and commercial advisers and their internationally operating clients.” (Id.) The new commercial court is important not only to meet this need, the Ministry indicated, but also, by conducting international trade case hearings in English, to ensure the role of the Netherlands in international trade. (Id.) There also appears to be a world-wide trend to establish international commercial courts, such as those recently set up in Singapore and Dubai. (Annette Scholten, An International Netherlands Commercial Court?,TRANSNATIONAL NOTES (Feb. 28, 2017).)
Features of the Draft Legislation
The draft law provides for the amendment of the Dutch Code of Civil Procedure and the Act on Court Fees in Civil Proceedings to make it possible for English-language cases to be handled by an international commercial chamber of the Court of Amsterdam – the Netherlands Commercial Court (NCC) – and by the international commercial chamber of the Amsterdam Court of Appeal – the Netherlands Commercial Court of Appeal (NCCA). (Legislative Proposal on Netherlands Commercial Court Submitted to Dutch House of Representatives, supra; TK Wetsvoorstel inzake Netherlands Commercial Court [TK Bill on Netherlands Commercial Court], Government of the Netherlands website (July 18, 2017) (click on pdf icon or hyperlink to download text); Wetboek van Burgerlijke Rechtsvordering [Code of Civil Procedure] (as last amended Apr. 1, 2017), OVERHEID.NL; Wet van 30 september 2010 tot invoering van een nieuw griffierechtenstelsel in burgerlijke zaken (Wet griffierechten burgerlijke zaken) [Act of 30 September 2010 on the Introduction of a New Court Fee System in Civil Proceedings] (Act on Court Fees in Civil Proceedings) (Sept. 30, 2010, as last amended effective Mar. 1, 2017) OVERHEID.NL.)
Among other measures, the draft legislation inserts a new article 30r in the Code of Civil Procedure, stating that if the NCC or the NCCA has jurisdiction to hear a dispute that has arisen or that will arise in connection with a particular legal relationship freely determined by the parties and that concerns an international dispute, and the parties explicitly agree to it, the parties may prosecute the case in the English language in the NCC or the NCCA. This does not apply to matters that fall under the jurisdiction of the district court. The agreement to have the case heard in English is to be evidenced in writing; a document containing a clause on the agreement, or referring to such a clause in general terms, is sufficient for that purpose, provided that the specific clause has been expressly accepted by or on behalf of the other party. (Id. art. IA, inserting art. 30r(1).)
If parties have agreed to adjudication by the NCC or the NCCA, the presiding judge will be responsible for handling the case in English. (Id. art. IA, inserting art. 30r(3).) The court will also pronounce sentence in English, unless the proceedings have been conducted in Dutch at the request of the parties. However, if a party lodges a defense that the case must not be dealt with by the international commercial division of the NCC or the NCCA, but by another court, the proceedings may be conducted in Dutch and the judge will render verdict in Dutch. (Id. art. IA, inserting art. 30r(4).) If a decision rendered in English must be registered in a Dutch public register in accordance with a legal requirement, the parts of the decision necessary for that registration will also be set down in Dutch. (Id. art. IA, inserting art. 30r(5).)
Proposed changes to the Act on Court Fees in Civil Proceedings have to do with the payment of court fees for handling of the case by the international commercial division of the NCC or NCCA. (Id. art. IIA, inserting a new art. 9a in the Act.)
Other Aspects of the New Court
Three judges specialized in dealing with international trade disputes will hear each case that comes before the new court. The judges will be selected on the basis of such qualifications as their knowledge of private law, their knowledge of legal English and of American and English procedural law, and their experience in handling large and complex international trade disputes. (Jurisdiction of the Netherlands Commercial Court, Netherlands Commercial Court website (last visited Aug. 1, 2017).)
The legislation on the court, the Netherlands Commercial Court Act (Wet Netherlands Commercial Court), is scheduled to come into force on January 1, 2018. (The Netherlands Commercial Court, Netherlands Commercial Court website (last visited Aug. 1, 2017).)
Wednesday, August 26, 2020
Thursday, August 20, 2020
July 7, 2017) On March 1, 2017 Netherlands: Two New Laws and Decree on Right of Access to a Lawyer
Netherlands: Two New Laws and Decree on Right of Access to a Lawyer
(July 7, 2017) On March 1, 2017, two new laws and a decree, all related to the right of access to a lawyer before and during police questioning of a suspect, entered into force in the Netherlands. (Legislation Access Lawyer During Police Questioning in Force, Ministry of Security and Justice website (Feb. 27, 2017).)
A law adopted on November 17, 2016, transposes into Dutch law the corresponding European Union directive on the right of access to a lawyer. According to the Dutch Ministry of Security and Justice, the new pieces of legislation balance the interests of the suspect and those of the investigation. (Id.; Act of 17 November 2016 Implementing Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the Right of Access to a Lawyer in Criminal Proceedings and in European Arrest Warrant Proceedings, and on the Right to Have a Third Party Informed upon Deprivation of Liberty and to Communicate with Third Persons and with Consular Authorities While Deprived of Liberty, STAATSBLAD VAN HET KONINKRIJK DER NEDERLANDEN [GOVERNMENT GAZETTE OF THE KINGDOM OF THE NETHERLANDS, Stb.] 2016 Nr. 475 (Dec. 8, 2016, in force on Mar. 1, 2017), available at OVERHEID.NL (in Dutch); Directive 2013/48/EU…, 2013 OJ (L. 294) 1, EUR-LEX.)
The second law, also adopted on November 17, 2016, amends the Code of Criminal Procedure and some other legislation by adding new provisions on the accused, counsel, and some coercive measures. (Act of 17 November 2016, Amending the Code of Criminal Procedure and Some Other Laws Relating to the Addition of Provisions on the Accused, Counsel, and Some Coercive Measures, Stb. 2016 Nr. 476 (Dec. 8, 2016), available at OVERHEID.NL (in Dutch).) The law has supplementary measures pertaining to the initial phase of a criminal investigation, e.g., it extends the period of time that a suspect may be held for questioning from six hours to nine, to further enable access to legal counsel during questioning. (Legislation Access Lawyer During Police Questioning in Force, supra.)
Finally, the Decree of January 26, 2017, provides rules to implement the participation of counsel during investigative questioning. (Besluit van 26 januari 2017, houdende regels voor de inrichting van en de orde tijdens het politieverhoor waaraan de raadsman deelneemt (Besluit inrichting en orde politieverhoor), Stb. 2017 Nr. 29 (Feb. 9, 2017), available at OVERHEID.NL.) The legislation corresponds to a policy letter, applied by the Public Prosecution Service since March 1, 2016, that laid down rules of practice for the right to legal counsel prior to and during police questioning; it is also in line with EU regulations, decisions of the European Court of Human Rights, and case law of the Dutch Supreme Court. (Legislation Access Lawyer During Police Questioning in Force, supra.)
According to the Decree, counsel may make comments and ask questions “directly after the start and directly before the end of the questioning,” with the investigating officer in charge responsible for providing this opportunity to counsel. (Id.) During the questioning, lawyers are authorized to point out to the interrogating officer that, for example, the suspect did not understand the question asked or that the suspect’s physical or psychological state is impeding reliable continuation of the interrogation, and also to respond to the officer themselves if the suspect cannot freely make a statement, which constitutes, according to the Ministry of Security and Justice, a ban on coercive interrogations. (Id.)
The Decree also provides that the lawyer or the suspect him/herself “may ask for an interruption of the questioning, for mutual consultations” but the lawyer may “not answer any questions on behalf of the suspect, unless with the consent of the officer conducting the interrogation and of the suspect.” (Id.) The Decree indicates that the interrogating officer may, if he “considers it effective and reasonable,” permit the lawyer to play more of a role during questioning. (Id.) In addition, lawyers are to be given the opportunity to make remarks on how the questioning is represented when drawn up in the official report on the interrogation. (Id.)
Author: Wendy Zeldin
Topic: Criminal procedure, Detention
Jurisdiction: Netherlands
Date: July 7, 2017
Tuesday, August 11, 2020
Monday, July 20, 2020
Netherlands: Court Prohibits Government’s Use of AI Software to Detect Welfare Fraud (Mar. 13, 2020) On February 5, 2020
Netherlands: Court Prohibits Government’s Use of AI Software to Detect Welfare Fraud
(Mar. 13, 2020) On February 5, 2020, the District Court of The Hague (Rechtbank Den Haag) held that the System Risk Indication (SyRI) algorithm system, a legal instrument that the Dutch government uses to detect fraud in areas such as benefits, allowances, and taxes, violates article 8 of the European Convention on Human Rights (ECHR) (right to respect for private and family life).
Facts of the Case
The case was brought by several civil rights organizations, including the Netherlands Committee of Jurists for Human Rights (Nederlands Juristen Comité voor de Mensenrechten, NJCM), and two natural persons against the Dutch government. The Federation of Trade Unions in the Netherlands (Federatie Nederlandse Vakbeweging, FNV) intervened on behalf of the plaintiffs. The NJCM works to protect and strengthen fundamental human rights and freedoms. The FNV is a trade union that acts in the interests of its members and “is guided in part by the fundamental values of equality of all people, of freedom, justice and solidarity.” (District Court, paras. 2.2, 2.4 & 2.5.) The UN special rapporteur on extreme poverty and human rights, Philip Alston, submitted an amicus brief.
Decision
The Court first stated that social security is one of the pillars of Dutch society and contributes significantly to prosperity in the Netherlands. The fight against fraud, which is the stated aim of the SyRI legislation, is therefore crucial. It agreed with the government that new technologies such as the SyRI, which offer more possibilities to prevent and combat fraud, should be utilized and generally serve a legitimate purpose. However, the Court pointed out that the development of new technologies means that the right to respect for private life, which includes the right to the protection of personal data, is increasingly important and that the absence of sufficient and transparent protection of it might have a “chilling effect” among the population. (Paras. 6.3–6.5.)
The Court reiterated that the Netherlands has an obligation under article 8 of the ECHR to strike a fair balance between the interference with the right to respect for private life and the benefits of the use of new technologies to prevent and combat fraud. It held that the SyRI legislation fails to comply with that requirement because it is “insufficiently clear and verifiable.” It therefore declared article 65 of the SUWI Act and chapter 5a of the SUWI Decree incompatible with article 8, paragraph 2 of the ECHR. (Paras. 6.6 & 6.7.)
The Court focused its remarks on article 8 of the ECHR, but took the general principles of data protection codified in the EU Charter and the GDPR into account, because they offer the same level of protection. (Para. 6.41; EU Charter art. 52, para. 3.) According to the Court, it is undisputed that the SyRI legislation interferes with the right to respect for private life and that the Court must decide whether it is justified. The Court held that it cannot determine what exactly the SyRI is because the government has neither publicized the risk model and the indicators that make up the risk model nor submitted them to the Court. (District Court para. 6.49.) It ruled that the implementation of the SyRI legislation currently does not involve deep learning, data mining, and risk profile development but that it might in the future. (Para. 6.63.) Even though there is no random data collection, a large amount of data is collected, in the opinion of the Court. (Para. 6.50.) Finally, the Court stated that people whose data is collected and included in a risk report are not automatically informed. There is only a legal requirement to announce the start of a SyRI project. (Paras. 6.54 & 6.65.)
The Court reiterated the case-law of the European Court of Human Rights that states that any interference with the right to respect for private life must be provided for by law. It explained that it does not have to be a law in the formal sense, but that “some basis in domestic law” is sufficient. The legal basis must be sufficiently accessible and foreseeable, meaning it must be so clear that it is possible for an individual to adjust his or her behavior accordingly. In the case at issue, the Court left open the question whether the SyRI legislation is sufficiently accessible and foreseeable and concentrated on whether it was necessary in a democratic society. (Paras. 6.66–6.72.)
msdogfood@hotmail.com
(Mar. 13, 2020) On February 5, 2020, the District Court of The Hague (Rechtbank Den Haag) held that the System Risk Indication (SyRI) algorithm system, a legal instrument that the Dutch government uses to detect fraud in areas such as benefits, allowances, and taxes, violates article 8 of the European Convention on Human Rights (ECHR) (right to respect for private and family life).
Facts of the Case
The case was brought by several civil rights organizations, including the Netherlands Committee of Jurists for Human Rights (Nederlands Juristen Comité voor de Mensenrechten, NJCM), and two natural persons against the Dutch government. The Federation of Trade Unions in the Netherlands (Federatie Nederlandse Vakbeweging, FNV) intervened on behalf of the plaintiffs. The NJCM works to protect and strengthen fundamental human rights and freedoms. The FNV is a trade union that acts in the interests of its members and “is guided in part by the fundamental values of equality of all people, of freedom, justice and solidarity.” (District Court, paras. 2.2, 2.4 & 2.5.) The UN special rapporteur on extreme poverty and human rights, Philip Alston, submitted an amicus brief.
Decision
The Court first stated that social security is one of the pillars of Dutch society and contributes significantly to prosperity in the Netherlands. The fight against fraud, which is the stated aim of the SyRI legislation, is therefore crucial. It agreed with the government that new technologies such as the SyRI, which offer more possibilities to prevent and combat fraud, should be utilized and generally serve a legitimate purpose. However, the Court pointed out that the development of new technologies means that the right to respect for private life, which includes the right to the protection of personal data, is increasingly important and that the absence of sufficient and transparent protection of it might have a “chilling effect” among the population. (Paras. 6.3–6.5.)
The Court reiterated that the Netherlands has an obligation under article 8 of the ECHR to strike a fair balance between the interference with the right to respect for private life and the benefits of the use of new technologies to prevent and combat fraud. It held that the SyRI legislation fails to comply with that requirement because it is “insufficiently clear and verifiable.” It therefore declared article 65 of the SUWI Act and chapter 5a of the SUWI Decree incompatible with article 8, paragraph 2 of the ECHR. (Paras. 6.6 & 6.7.)
The Court focused its remarks on article 8 of the ECHR, but took the general principles of data protection codified in the EU Charter and the GDPR into account, because they offer the same level of protection. (Para. 6.41; EU Charter art. 52, para. 3.) According to the Court, it is undisputed that the SyRI legislation interferes with the right to respect for private life and that the Court must decide whether it is justified. The Court held that it cannot determine what exactly the SyRI is because the government has neither publicized the risk model and the indicators that make up the risk model nor submitted them to the Court. (District Court para. 6.49.) It ruled that the implementation of the SyRI legislation currently does not involve deep learning, data mining, and risk profile development but that it might in the future. (Para. 6.63.) Even though there is no random data collection, a large amount of data is collected, in the opinion of the Court. (Para. 6.50.) Finally, the Court stated that people whose data is collected and included in a risk report are not automatically informed. There is only a legal requirement to announce the start of a SyRI project. (Paras. 6.54 & 6.65.)
The Court reiterated the case-law of the European Court of Human Rights that states that any interference with the right to respect for private life must be provided for by law. It explained that it does not have to be a law in the formal sense, but that “some basis in domestic law” is sufficient. The legal basis must be sufficiently accessible and foreseeable, meaning it must be so clear that it is possible for an individual to adjust his or her behavior accordingly. In the case at issue, the Court left open the question whether the SyRI legislation is sufficiently accessible and foreseeable and concentrated on whether it was necessary in a democratic society. (Paras. 6.66–6.72.)
msdogfood@hotmail.com
Subscribe to:
Posts (Atom)