How do the Dutch courts deal with documentary evidence in a foreign language?
It frequently happens that a document in a foreign language is used as evidence in civil proceedings before a Dutch court. But nearly all Dutch judges have sufficient command of the English language, and most of them also speak German and/or another language in addition. Is it therefore necessary to use a – sworn or informal – translation in proceedings before a Dutch court? Litigation lawyer Onno Hennis answers this question using a ruling by the Supreme Court of the Netherlands.
Proceedings in the Dutch language
The starting point is that civil proceedings before a Dutch court are conducted in the Dutch language. The procedural law and the procedural rules are all in Dutch as well. The judgment is also given in Dutch. There is one important exception to this rule, namely the Netherlands Commercial Court (NCC), which will be discussed in more detail later on.
Since the Netherlands plays an important role in the international trade system, there are many commercial relationships with foreign parties. Often, English or another foreign language will be the language of communication in these relationships. Germany is the most important trading partner for the Netherlands.
In civil proceedings it is therefore more the rule than the exception that essential documents have been drawn up in a foreign language. Often, lawyers quote the relevant evidence in the original language. Here you can think of emails, contracts and transcriptions of conversations, among other things. For the sake of certainty – and especially if the subject matter or the use of language is complex – a (sworn or unsworn) translation will often be added.
Supreme Court of the Netherlands
But what if the lawyer does not add a translation? Can the court just disregard this? The Supreme Court of the Netherlands gave a negative answer to that question in proceedings between a Dutchman and a German by establishing a rule of law.
According to the Supreme Court of the Netherlands, the following three starting points apply. Firstly, a translation of a piece of evidence is not required if neither the court nor the other party needs this for a proper assessments of its contents. Secondly, evidence in English, French or German do not in principle need to be translated, but the judge may request a translation if he deems this necessary or desirable for the handling of the case, also in view of the interests of the other party. Thirdly, evidence in another foreign language does in principle need to be translated.
Absence of a translation
The Supreme Court of the Netherlands furthermore ruled that if there is no translation but – at the request of the other party or otherwise – the judge deems such translation necessary or desirable, the other party should be given the opportunity to submit a translation, unless this is contrary to due process of law.
Sworn or informal translation?
In that case, the judge may require a statement drawn up and signed by a sworn translator. This is for the judge to decide. In practice, the judge may require that either party provides a sworn translation, so the court will be able to compare these translations. This will in particular be the case in matters in which the linguistic interpretation of a contractual provision drawn up in a foreign language is decisive.
Netherlands Commercial Court
Since 2019 it has been possible to initiate proceedings at the NCC in international cases. The NCC is a court in Amsterdam which was established especially for complex cases assessed by specialised judges in proceedings that are entirely conducted in English. The judgment is also drawn up in English, but has the same legal status as a judgment of the court and can be enforced in the same manner throughout the European Union.
AMS Advocaten: your legal sparring partner in international disputes
Are you involved in a dispute with your Dutch trading partner? We will be happy to discuss with you whether and in what way we can be of service to you.