Summary of phone call with Dutch Attorneys:

1.       The liability notice is not considered formal service; it is a notification and could have been sent via email.

2.       Media articles researched by the lawyers show the claimant wants a satisfactory answer from the defendants involved regarding liability.  Lawyers don’t think we will be able to give them a satisfactory answer so the next step in Dutch law in order to start civil proceedings is that the claimant needs to instruct a bailiff (civil servant) to serve actual documents on the defendants. (To issue an official summons).

3.       The lawyers are not sure if the Hague Convention regarding service is applicable and will look into this further. They did point out that for service under Dutch law a business address is accepted as a domicile but will look into if it is acceptable to serve documents on the Ministry of Defense.

4.       We need to decide on strategy: 1) state immunity or 2) jurisdiction issue. Lawyers think jurisdiction issue is going to be the heart of the case, whether there is universal jurisdiction.

5.       Jurisdiction: Civil courts in the Netherlands will only have jurisdiction:

·         If it's impossible for the claimant to bring the case in Israel e.g. war

·         Cannot be reasonably expected of that person to start legal proceedings in Israel. The argument they will need to prove is that it is not reasonable to have a case in Israel, as the claimant is a Palestinian he is and will be discriminated against.

6.       Summary proceedings: (Can be very fast, a few weeks, we need to prepare for this): The complainants need to file complaint to bailiff. If proceedings are extra ordinary the bailiff can approach Ministry of Justice or the Ministry of Justice can approach the bailiff on its own and instruct him not to serve the documents. Following this the complainants can approach the court to challenge the Ministry of Justice`s decision. The court will initiate summary proceedings and these proceedings can happen very fast.

7.       Israel has an option to not respond. Even if no one raises the issue, the court has to address the jurisdiction issue.

8.       Dutch government standing: Additionally the Dutch government can also intervene. Previous case law regarding the UN, the Dutch government intervened. Not clear what will happen in this case, it will also depend on the political cover of the upcoming cabinet.

9.       Practical next steps for us:

·         Lawyers advise us to start working on putting together a document of examples of Israeli civil cases where Palestinians have claimed damages.

·         Lawyers will start preparing 2 documents: 1) a strategic paper 2) Dutch legal background paper.

 

 

 

Very good – please change the bullets into numbers so I can refer in my email to certain points

 

 

Summary of phone call with Dutch Attorneys:

·         The liability notice is not considered formal service; it is a notification and could have been sent via email.

·         Media articles researched by the lawyers show the claimant wants a satisfactory answer from the defendants involved regarding liability.  Lawyers don’t think we will be able to give them a satisfactory answer so the next step in Dutch law in order to start civil proceedings is that the claimant needs to instruct a bailiff (civil servant) to serve actual documents on the defendants. (To issue an official summons).

·         The lawyers are not sure if the Hague Convention regarding service is applicable and will look into this further. They did point out that for service under Dutch law a business address is accepted as a domicile but will look into if it is acceptable to serve documents on the Ministry of Defense.

·         We need to decide on strategy: 1) state immunity or 2) jurisdiction issue. Lawyers think jurisdiction issue is going to be the heart of the case, whether there is universal jurisdiction.

·         Jurisdiction: Civil courts in the Netherlands will only have jurisdiction

1)      If it's impossible for the claimant to bring the case in Israel e.g. war

2)      Cannot be reasonably expected of that person to start legal proceedings in Israel. The argument they will need to prove is that it is not reasonable to have a case in Israel, as the claimant is a Palestinian he is and will be discriminated against.

·         Summary proceedings: (Can be very fast, a few weeks, we need to prepare for this): The complainants need to file complaint to bailiff. If proceedings are extra ordinary the bailiff can approach Ministry of Justice or the Ministry of Justice can approach the bailiff on its own and instruct him not to serve the documents. Following this the complainants can approach the court to challenge the Ministry of Justice`s decision. The court will initiate summary proceedings and these proceedings can happen very fast.

·         Israel has an option to not respond. Even if no one raises the issue, the court has to address the jurisdiction issue.

·         Dutch government standing: Additionally the Dutch government can also intervene. Previous case law regarding the UN, the Dutch government intervened. Not clear what will happen in this case, it will also depend on the political cover of the upcoming cabinet.

Practical next steps for us:

·         Lawyers advise us to start working on putting together a document of examples of Israeli civil cases where Palestinians have claimed damages.

·         Lawyers will start preparing 2 documents: 1) a strategic paper 2) Dutch legal background paper.