LEGAL AFFAIRS

 
Offering Expat Law Support

By Godelijn Boonman

Expat Services
Godelijn was 22 when she got her law degree from the University of Utrecht, and eagerly accepted the opportunity to get a solid training with Wladimiroff en Spong Advocaten – a team of internationally acclaimed lawyers. In 2000, she accepted a position with GMW Advocaten, where she noted that with their combined expertise, and her expat experience, they were in an excellent position to offer labor law advice to international companies and expats. Her proposition was accepted and a two-tier system of expat services was set up. “We have both an expat desk, that has been created to help expats with any legal issues they run into while here, and we have a practice for the international community, in which we offer both companies and employees advice on labor law issues. For instance, on how to create a standard contract that meets both UK and Dutch law requirements,” Godelijn explains. “When advising employees, we point out that, no matter which national law is declared applicable to their employment contract, once you live and work in the Netherlands, Dutch law is applicable, certainly if the other national law offers less protection. One important consequence, which is of great relevance to expats, is that they cannot be fired without having gone through one of the two Dutch dismissal procedures.”

Dismissal Procedures
These procedures are, in Godelijn’s experience, the greatest source of surprise to both employers and employees. She briefly outlines the system: “Before you can fire an employee, you have to either request permission from the CWI (Central Organization for Work and Income), or else have the court dissolve the labor contract. The main difference between the two is the fact that the court can award the employee indemnification, if they allow the contract to be dissolved. Both procedures are lengthy and the outcome is not guaranteed, but one thing is certain; they offer the employee a degree of protection, particularly against immediate dismissal, that can be an unpleasant shock to international employers. Particularly if they counted on the applicability of a different national law to the contract.”

Comparing Legal Systems
How does Godelijn, who has extensive international experience, feel the various legal systems compare? “I myself am very much in favor of the system in the Netherlands. Its advantages are that there is no jury, and that the system is fast and efficient. A disadvantage however is that, as the court cases become a little repetitive for the judges, they tend to approach them as routine issues, while for the employer and employee, they are important individual conflicts.”
Godelijn continues her comparison: “The Dutch judicial system is based on a code of law, supplemented by case law. Case law is only used to clear up ambiguous issues, or to accommodate for new developments. In other countries, such as England, there is only case law. In my opinion, having a legal code supplemented by case law stimulates both equality before the law and legal certainty; the law is clearly stated in the code. This makes clients far less dependent on their lawyer’s and the judge’s knowledge of the vast quantities of case law.”

Jury
Also working with a jury is not conducive to legal equality or certainty, according to Godelijn: “When you have a legal issue, this should be brought before a specialist, a judge. If you have broken your arm, do you go to four people on a corner and ask them, ‘What do you think? Is it broken?’.”
But isn’t it so that it is precisely the role of the judge to provide guidance and to supply the necessary expertise? Godelijn answers: “The judge facilitates – but does not point out whether what has been said is correct or whether it covers everything. It is up to the jury to ‘determine’ whether a person is guilty or innocent, and a lot depends on the presentation. Whether or not you convince the jury of the guilt, or insanity, or innocence of a person, depends too much on how the lawyer or specialist comes across. On their ability to charm, convince or shock the jury. Instead of on the bare facts and circumstances, and the law. While if the case is put before a judge, then there is at least the certainty of an unambiguous legal code, leaving more room to focus – as we do in the Netherlands – on the circumstances of the case. To me, this is a far more civilized approach.” She thinks this over, and elaborates: “I would like to qualify that. In Africa, if you are talking about a tribal issue, whereby a sort of jury of elders gets together to determine the consequences and to come up with a solution that everyone is expected to respect, then this is a system that works. In fact, you could almost consider it the epitome of civilization.”

Mediation
Ever one to qualify her statements, Godelijn continues her train of thought: “There are, however, conflicts that do lend themselves for seeking a solution with the help of a respected third party – in other words, mediation.” She reflects on this for a moment and adds: “The interesting thing is that experience shows that it takes more time and effort to reach a solution in labor law cases than in family law cases.” Why does she think this is? “I would venture to say; because often there are children involved, and the parents will have to continue to cooperate also after the process is over. There is more need for a swift solution and a some level of harmony, which can only be achieved if both parties feel satisfied with the outcome. While in the case of a labor law conflict, once a solution has been found, the parties part ways and do not have to deal with each other anymore. This decreases the urge to search for a compromise that will allow them to leave the negotiating table relatively harmoniously, so that they remain more at loggerheads during the process.” All in all, Godelijn muses, the law remains a fascinating area; diverse, complicated, challenging – but nonetheless rewarding.

Godelijn Boonman works for GMW Advocaten, where she focuses on (mostly international) labor law. She grew up in Kenya and England, until, after 14 years, her parents decided to bring their three children back to the Netherlands. They stayed here for ten years, allowing the children to complete high school and go to university here, and then her parents moved to Moscow.

GMW Advocaten has both an expat desk, offering expats advice on legal issues, and a practice for the international community, offering advice on corporate law, family law, real estate and labor law issues. They also offer mediation, both in family law and labor law. Their website is: www.gmw.nl.