'Writing a judgment is far easier than writing a dissertation'
Doing a PhD on the side? External PhD candidates, like Joost Van der Helm, just get on and ‘do it’. Besides his hectic job as a justice at the Court of Appeal in The Hague, Van der Helm managed to still find time to write a PhD dissertation.
You’re used to taking control. So how does it feel to have to ‘let go’ during your PhD defence ceremony?
‘That's one of the most nerve-racking things. If I have a very difficult court session, I think to myself – in the end, I decide what happens. But now someone else decides what we'll discuss which is nerve-racking. I can be as well prepared as possible, but I still don't know what's going to happen exactly. That's why I find it so difficult to prepare for the ceremony.’
Compared to a court session, the PhD defence ceremony is very short. Does that help?
‘Yes, it’s only 45 minutes. That’s almost the same time as preliminary relief proceedings. Considering that our lawyers [at the Court of Appeal] are given 30 minutes to address the court, then it’ll be over before you know it.’
You wrote your PhD later in your career. Were there any advantages to that?
‘Definitely! I think it was a lot easier for me to write the dissertation than if I’d done it 20 years ago. That said, if I had the choice again, I would do it straight after graduating.’
‘Then you get it out of the way straight away’, he says half-jokingly. ‘I really enjoyed writing a PhD dissertation, but I was always busy just keeping up with my normal job and that made it hard going. “Ordinary” PhD candidates have six years to teach and write a dissertation. But that’s not to say they don’t have a hard time, because they’re at a much earlier stage in their career which makes it harder in that respect. But still – I would’ve liked to have had the freedom they have.’
You previously wrote a monograph about the court injunction and prohibition. In the preface of your dissertation, you say that writing that monograph inspired you to write a dissertation. What or who inspired you exactly?
‘I was already thinking about writing a dissertation. I’ve known my supervisor Bart Krans for a long time. We were lawyers at the same time. Over the years, it became a running gag between us. Every now and then, Bart would ask: "How’s your dissertation going Joost?"
So when I started writing the monograph, Bart said: ‘why not keep going and write a dissertation, because that’s something you still have to do,’ to which I replied: ‘yes, but I’ve never written a book before, so let’s see if I can do that first’.
‘I really enjoyed the writing process and so in the end I did manage to write a full dissertation.’
What was the difference between writing a dissertation and your normal job?
‘In my work, I go from case to case, whereas writing a dissertation is a long-term project, where I’m not bound by what the parties bring forward, but what I want to discover and research myself. At the same time, that also makes it much more difficult. For me, writing a judgment is far easier than writing a dissertation.'
What are the most important findings of your dissertation?
‘I compared Dutch law to EU law and looked at the ensuing requirements.
One important finding is that under Dutch law, the court actually has only two options. It either grants or rejects a claim. The court may not look at who has the greatest interest in a particular outcome and agree with that party. EU law requires that a sanction, such as an injunction or prohibition, is proportionate and that implies balancing interests. These two principles can clash, because on the one hand, the court may not balance interests, but it may also not impose a disproportionate sanction.'
What are the other findings?
‘You can get compensation for damage if it has already been suffered. In that case, you rectify something afterwards. I looked into whether you are also entitled to a preventive remedy. So do you have the right to prevent damages rather than be compensated once suffered? And my conclusion is yes, you do. That's because the law is simply made up of rules of conduct that aim to guide how people live together. So if you can't enforce that pre-emptively, people can just violate those rules and pay damages subsequently. But not everything can be bought and a preventive prohibition or injunction can prevent damage from being caused.
The other question was, does our national system also meet the requirements under EU law? The disappointing thing – or perhaps the reassuring thing – is that our national system actually does. That’s hardly shocking, but it is an important finding.’
Defence on 16 May 2023
Van der Helm’s supervisors are Bart Krans, Professor of Private Law and Civil Procedure at Leiden University, and Mark Wissink, Professor of Private Law at the University of Groningen.
Joost van der Helm will defend his dissertation Het rechterlijk bevel en verbod als remedie (The court injunction and prohibition as a remedy) on 16 May 2023 at 16.15 hrs in the Academy Building of Leiden University. You can follow the livestream here.
Find out more?
The English summary of the dissertation is available here.
Kluwer has published the dissertation in its series Burgerlijk Proces & Praktijk. The dissertation will appear in print and online on 17 May 2023.