From 1 January 2025, civil evidence law in the Netherlands has undergone significant changes. This modernisation is directly relevant for companies and institutions operating in the Netherlands or doing business internationally. Whether you regularly conclude contracts, are involved in disputes or conduct proceedings: the new law of evidence offers both opportunities and challenges. In this article, you will read what is changing, what this means concretely for your organisation and how you can anticipate this.
Why is the new law of evidence relevant?
In practice, gathering evidence often proves to be a stumbling block in contract law and dispute resolution. Think of situations where, as a business, you need evidence of a breach of contract, liability or a tort. The new law of evidence makes it easier and more efficient to obtain relevant information and documents both before and during proceedings. This is essential to strengthen your position in a dispute or proceeding.
What has changed from 1 January 2025?
The Simplification and Modernisation of Evidence Act went into effect. The main changes are:
- One central system for evidence proceedings: All preliminary evidence proceedings, such as hearing witnesses, expert evidence or inspection of documents, are now accommodated in one clear system. This makes the process more efficient and clearer.
- More accessible right of inspection: It becomes easier to access relevant information from the opposing party, even before proceedings have officially started.
- Lower threshold for inspection: You no longer have to prove a compelling interest; a sufficient interest is now enough. This makes it easier to access important documents.
- Digital selection possible: With large amounts of digital files, you are allowed to use search terms to find relevant information. This avoids receiving unnecessarily many or, on the contrary, too few documents.
- Mandatory cooperation: The other party must cooperate in providing information, unless there are compelling reasons to refuse, such as privacy or trade secrets.
Why is the new law of evidence beneficial in litigation?
The updated law of evidence offers clear advantages for companies and institutions facing disputes or proceedings. One of the biggest improvements is that, as a party, you can request relevant documents at an early stage, even before proceedings have officially started. This means you get clarity on the available evidence and your position in the dispute faster. You can also combine different requests for evidence, saving time and costs. The ability to perform targeted searches in digital files with search terms also makes gathering evidence much more efficient. The other party is obliged to cooperate in providing information, unless there are compelling reasons to refuse. All this makes procedures more transparent, fairer and faster, and you are better prepared as a company.
Case study: Inspection of digital records
Suppose your company supplies technical parts to a customer. After delivery, a dispute arises about the quality of the products and the customer refuses to pay (part of) the invoice. You suspect that the buyer had signals even before delivery that the products would not meet requirements, but did not communicate this in time. You want to prove this with (internal) e-mails and quality reports from the buyer.
Under the new law of evidence, you can ask the court to inspect specific digital documents of the buyer. In doing so, you can specify what types of documents you are looking for (e.g. internal emails about the delivery, quality reports, complaint records) and even suggest search terms relevant to the dispute. The court will assess whether you have a sufficient interest in the inspection and may determine that the buyer must provide this information, unless there are compelling reasons to refuse (such as trade secrets or privacy).
Thanks to the new law, you can therefore gather evidence faster and in a more focused way, without having to wait until the proceedings are complete. This strengthens your position considerably, especially in commercial cases where evidence often lies with the other party and proceedings can be complex.
Can you make agreements in contracts about administration in disputes?
It is certainly possible and in many cases wise to lay down in contracts which documents and data belong to the 'fixed available administration' in the event of a dispute or impending dispute. By making clear agreements on this in advance, you avoid discussions afterwards about which documents are relevant and should be made available. For example, consider including a provision stating that parties are obliged to keep certain contracts, correspondence, invoices, reports or other relevant documents and make them available upon request in case of a dispute.
This kind of contractual agreement fits in well with the new law of evidence, which focuses on the importance of prompt and complete disclosure. By determining in advance which documents belong to the administration, you reduce the risk of evidence problems and strengthen your position in any proceedings. The inclusion of such provisions is therefore certainly relevant and can contribute to a more efficient and fairer settlement of disputes.
Practical tip: When drafting or revising contracts, always have a critical look at the agreements on administration and evidence. This way you avoid surprises if a dispute arises unexpectedly. And with international parties, it is also important which law applies and which authority takes cognisance of disputes.
How do you handle this as a company?
- Inventory your evidence position: Map out what information you need for a (looming) dispute or procedure.
- Request timely inspection: Consider requesting inspection even before proceedings, especially if you suspect that evidence may be lost.
- Work carefully with search terms: With digital records, it is important to choose search terms carefully so that you do not miss relevant documents.
- Be prepared to cooperate: Bear in mind that, as a counterparty, you may be required to provide relevant information.
- Get legal help: The new law of evidence offers opportunities, but requires a strategic approach. A specialised lawyer can guide you through this.
What can TK do for you?
TK has extensive experience in contract law, disputes and proceedings, both nationally and internationally. We can advise you on the possibilities of the new law of evidence, help you formulate effective inspection requests and guide you through the entire process. We also think along with you about including administrative provisions in your contracts, so that you are optimally prepared for possible disputes.
More information?
Want to know what the new law of evidence means for your business? Feel free to contact us for a no-obligation consultation. Together, we will make sure you are optimally prepared for the legal challenges of 2025 and beyond.
