DOMBO BEHEER B.V. v. THE NETHERLANDS JUDGMENT DISSENTING OPINION OF JUDGE MARTENS, JOINED BY JUDGE PETTITI 20 B. 4. As I have already noted, the Court sets out to determine whether the proceedings between Dombo and the Bank "in their entirety, including the way in which evidence was permitted, were ‘fair’ within the meaning of Article 6 para. 1 (art. 6-1)". The Court then suggests that among the "principles concerning the notion of a ‘fair hearing’ in cases concerning civil rights and obligations" "the requirement of ‘equality of arms’" is the most significant one as regards the present case. The Court goes on to say that in such proceedings "equality of arms" implies "that each party must be afforded a reasonable opportunity to present his case - including his evidence - under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent". The latter choice of words is not particularly fortunate, since it might be understood as indicating that the concept of "equality of arms" has substantive implications, in that it should also entail adapting substantive rules of procedure, such as the rules of evidence, in order to guarantee both parties substantively equal chances of success; whereas in relation to litigation concerning civil rights and obligations, the concept of "equality of arms" can only have a formal meaning: both parties should have an equal opportunity to bring their case before the court and to present their arguments and their evidence6. I take it, however, that the Court is of the same view and has only introduced this form of words as a test for determining when both parties cannot be said to have had equal opportunities to present their arguments and their evidence. In my opinion Dombo was indeed afforded such an opportunity. 5. Both parties had ample - and equal - opportunities to present their case in writing and both parties had ample - and equal - opportunities to present their evidence. Both sides submitted documents and called witnesses7. It is true that the Bank was able to bring as a witness its negotiator (Mr van W.), whilst Dombo did not have the opportunity to call its negotiator, Mr van Reijendam. There are, however, good grounds for holding that this did not place Dombo "at a substantial disadvantage vis-à-vis" the Bank. Firstly, under Netherlands law the courts are completely free in their assessment of the evidence of witnesses. Thus, the domestic courts were free to take into account the fact that Mr van W. was professionally involved with the Bank and therefore had a certain interest in the outcome of the proceedings8. Similarly they would have been free to ignore 6 See, most recently, G. Baumgärtel, 'Ausprägung der prozessualen Grundprincipien der Waffengleichheit und der fairen Prozessführung im zivilprozessualen Beweisrecht', Festschrift Franz Matscher, Vienna, 1993, pp. 29 et seq., with further references. 7 See paragraphs 12-18 of the Court's judgment. 8 This argument was stressed by the Netherlands Supreme Court: see paragraph 21 of the