Dutch Safety Board presents report on MH-17

The Dutch Safety Board prestented her report on MH-17.

In their press release they state:

“The crash of flight MH17 on 17 July 2014 was caused by the detonation of a 9N314M-type warhead launched from the eastern part of Ukraine using a Buk missile system. So says the investigation report published by the Dutch Safety Board today. Moreover, it is clear that Ukraine already had sufficient reason to close the airspace over the eastern part of Ukraine as a precaution before 17 July 2014. None of the parties involved recognised the risk posed to overflying civil aircraft by the armed conflict in the eastern part of Ukraine.”

See pressrelease-mh17-en

The full report can be found here: Website onderzoeksraad.nl

9de Groninger Letselschadecongres

Op 9 oktober 2015 vindt het jaarlijkse Groninger letselschade congres plaats. Dit jaar staat het congres in het teken van grensoverschrijdende letselschade in Europe. Antoinette Collignon zal tijdens het congres spreken over Europa en de letselschade advocaat. Voor meer informatie kunt hier vinden.

On 9 October 2015 the annual Groninger personal injury conference will take place. This year’s program is dedicated to cross border personal injury law in Europe. Antoinette Collignon will give a lecture at the conference on cross border personal injury law in Europe. More information can be found here


MH17 Crash: Some Legal Questions Answered

For LSA, the Dutch Association of Personal Injury Lawyers, Antoinette Collignon has answered some frequently asked legal questions further to the crash of Malaysia Airlines flight MH17. The Dutch text can be found on www.lsa.nl.

Anyone involved in a crash like Malaysia Airlines MH17 on 17 July 2014 suffers beyond description. So far there are no indications that the aircraft had mechanical failures. It seems that the plane was shot down by pro-Russian rebels using arms supplied by Russia. The investigation into the crash, the recovery and repatriation of the victims are highly complex and sensitive subjects. Just as complex and sensitive is the settlement of the loss already sustained and still to be sustained by the surviving relatives. Based on the information available at the time of writing – 26 July 2014 – experts have answered nine questions of law that have come up.

1. Could Malaysia Airlines Be Held Liable?
Under the Montreal Convention, which provides for strict liability in civil aviation, Malaysia Airlines will be required to pay damages up to 113,100 SDR (around EUR 120,000) for each passenger. It is irrelevant whether Malaysia Airlines is to blame for the crash. The surviving relatives will have to demonstrate the loss. In addition, Malaysia Airlines will be liable if it is found to be at fault. However, without an independent investigation it is impossible at this point to determine whether the airline is to blame. Claims must be filed within two years of the crash or they will lapse.

2. Which Law Applies?
The Montreal Convention does not contain any rules on the law governing the travel agreement and the requirement to pay damages. A European court will apply Regulation EC/593/2008 on the law applicable to contractual obligations (Rome I). Article 5.2 of that Regulation stipulates that if the law applicable to a contract for the carriage of passengers has not been chosen by the parties the law applicable will be the law of the country where the passenger has his/her habitual residence, provided that either the place of departure or the place of destination is situated in that country. This means that for most Dutch victims of the crash the contract for their carriage is likely governed by Dutch law. For non-Dutch nationals the applicable law should be determined on a case-by-case basis.

3. What Do the Claims for Damages of the Victims’ Families Cover?
If Dutch law applies, the claims for damages consist of so-called loss of dependency (costs of repatriation, funeral, etcetera), and loss of earnings (if, for instance, one of the family’s breadwinners or the sole breadwinner has died). It is difficult to compute the loss as allowance should be made for variable and fixed costs, among other things. In some cases it is possible to claim non-economic damages if the victims’ families sustained psychological damage when confronted with the crash. Emotional loss (bereavement following the loss of family members) cannot be claimed (yet) as the Upper House  (Senate) rejected the legislative proposal in 2010.  At the time of writing the government is working on a new proposal for compensation of emotional loss. If not Dutch law applies, but the law of another country, it is possible to claim not only loss of dependency but also non-economic damages following the loss of a family member.
4. Could the Separatists Who Downed the Plane Be Held Liable?
If it is determined that separatists have shot down the plane, Dutch law allows for claims under civil law against individuals for the damage they have caused. It is irrelevant whether or not they intended downing a civil aircraft. In that case the loss and damage should be compensated in full. There is a possibility that the individuals in question could be prosecuted under criminal law. The Dutch Public Prosecution Service could issue an international arrest warrant. A complicating factor, of course, is that the Donetsk People’s Republic (the state proclaimed by the pro-Russian separatists) is not likely to act on such warrant. The Ukrainian central authorities will also lack the power in this area to help. Theoretically, therefore, it is possible to hold the separatists liable, but success is doubtful. Even if the liable party could be found, it would be difficult to force that party to pay up. It is easier to hold a country liable than a group of rebels. In 1996 the United States, for instance, paid damages to the families of the victims of the Iranian civil aircraft that in 1988 had been accidentally shot down by an American warship.

5. Could Russia Be Held Liable?
At this point there is no definite answer to this question. If it turns out that the Russian political or military powers had direct command and control to down the aircraft, Russia might be held liable. Russia could also be held liable (in part) for supplying the weapons used to shoot down the aircraft. If separatists have used an SA-11 missile it might have been provided by Russia. SA-11 grizzly – so-called double-digit surface-to-air missile (BUK) – developed by Russia is an anti-aircraft system capable of bringing down aircraft from high altitudes. There have been reports that the equipment and the crew running it were provided by Russia. However, a causal connection should be demonstrated between the supply of the system and the crash. Also established should be fault. Although difficult, legally speaking, this is not impossible. The question further arises whether under the law applicable to the crash a government could be held liable. In other words: If Russia turns out to have supplied the weapons used to take down the aircraft, Russia might be held liable.
6. Could the Ukraine Be Held Liable?
This depends on the facts and circumstances. If the investigation reveals that Ukrainian military downed the aircraft, the Ukraine could be held liable. So far there has been no mention of this in the reports. The Ukrainian aviation authorities could be liable if they have given permission to fly over the area at an altitude from which they knew missiles could take down aircraft. This, too, calls for further investigation.
7. Could the Victims’ Families Go to Court to Demand Damages from One of the States Involved?
There are possibilities for the families of the victims to file claims against the states involved for damages to the extent that these are not paid by Malaysian Airlines. It is early days yet to answer this question fully and properly.

8. Which Law Governs Claims against One of the States/Separatists?
This question should be answered under private international law. A Dutch Court will apply Regulation EC/864/2007 (Rome II). The principal rule is the lex loci damni meaning the place where the damage occurred. It could be argued that court should apply Malaysian law as the victims were on board a Malaysian plane governed by Malaysian law at the time when they sustained damage. It could be argued also that the damage occurred outside the aircraft, in Ukrainian airspace. In that case Ukrainian law would apply. Finally, it would be fair to argue that Dutch law applies. Let’s say a breadwinner died in the crash. His or her family in the Netherlands, who relied on the deceased for their livelihood, suffers loss of income. A loss sustained in the Netherlands, although the cause of the loss lies in events in the Ukraine.  The same applies to losses of victims in Belgium, the UK and other EU countries.

9.  Are There Other Potentially Liable Parties?
The investigation might show that there are other potentially liable parties. Examples are companies responsible for making or authorising the flight plans or authorities that have the power to prohibit certain routes. The crash could be due (also) to mechanical failures, which could make the manufacturer liable. As mentioned earlier, mechanical failures are likely ruled out. However, it is too early for definitive conclusions.

The victims’ families could hold Malaysia Airlines liable for compensation of their loss, up to EUR 120,000 approx. per passenger. Any higher amounts can be claimed only if the airline has been found at fault. At this point no fault has been determined and there are other parties that might be held liable. Investigations will have to identify those parties and whether claims can be filed successfully. It is important that the competent court and governing law will be determined on a case-by-case basis. The many victims from various countries and the range of potentially liable parties make for a complex puzzle that can be completed only once the investigation has been concluded.
Let us hope that all parties involved will proceed with the utmost urgency and care to avoid any more suffering for the many affected.

Author: Antoinette Collignon

Jurisdiction in product liability cases in Europe

Kainz/Pantherwerke ECJ C-45/13 of 16 January 2014: interpretation of article 5 (3) of Brussel I in product liability cases 

According to article 2 and article 5 (3) of Regulation no. 44/2001 (Brussel 1) in product liability cases the defendant may be sued in the place where he is domiciled as well as in which the event giving rise to liability occurs. It is settled case law that in case the place where the event occurs and the place where that event results in damage are not identical article 5(3) must be understood as being intended to cover both the place where the damage occurred and the place of the event giving rise to it (see also ECJEU C-189 Zuid Chemie [2009]  and C-170/12 Pinckney [2013] ) This means that the defendant may be sued, at the option of the claimant in the court of those places.

Usually it is clear what the place is where the damage occurs. There can however be a discussion about the place of the event giving rise to the damage. Is that the place where the manufacturer is established, the place where the product is put into circulation or the place where the product was acquired.

In the case of Kainz vs Pantherwerke the European Court of Justice was asked to clarify the concept of place of the event giving rise to damage in relation to product liability.

Mr Kainz who lives in Salzburg (Austria ) had an accident in Germany while biking on a bike manufactured by Panterwerke AG in Germany but purchased by a retailer in Austria. Pantherwerke AG has a registered office in Austria. According to Kainz he fell from his bike because the fork end detached itself from the fork wheel. He claimed the Pantherwerke AG was liable as manufacturer in respect to a manufacturing defect. Kainz issued proceedings before the court in Austria,

Pantherwerke AG contested the international jurisdiction of the Austrian Courts. The place of the event giving rise to the damage, in their view was located in Germany. The bicycle was manufactured in Germany and was brought into circulation in that State when it was dispatched from that company’s place of business.

Both in first instance as well as on appeal the courts dismissed the action brought by Kainz on the grounds of lack of international jurisdiction. The Obester Gerichtshof (Supreme Court) considered it necessary to ask the European Court of Justice to clarify the concept of the event giving rise to damage in product liability cases.

The European Court ruled, in line with the Zuid Chemie case,  that this is the place where the event which damaged the product took place. This is in principle the place where the product is manufactured. The courts in that place will also be in best position to rule on the finding that a product is defective.

This means that in cases where a manufacturer faces a claim of liability the place of the event giving rise to damage is the place where the product in question was manufactured. A defendant in a product liability case may thus be sued in the court where the damage took place, the place where the product was manufactured and the place where he is domiciled.

The verdict can be found here

Extension Powers Claim Representatives in International Traffic Cases

English: Courtroom at the European Court of Ju...

 Courtroom at the European Court of Justice  (Photo credit: Wikipedia)


In international traffic cases in Europe involving Dutch vehicles loss and damage may be claimed from the representative of the foreign liability insurer in the Netherlands (claims representative) under Directive 2009/103 (the fifth Motor Liability Insurance Directive). The claims representative will settle the loss further to applicable law.


Although most cases are settled, some call for litigation. In that case there are several options. Under Brussels I  (EC Regulation 44/2001) a person sustaining damage can sue the insurer of the liability party in the country where the liable party resides, where the insurer has its registered office, in the country in which the accident happened or in the country where the victim resides.


So far the writ of summons was served through the competent authorities at the office of the insurer established abroad. Service abroad takes time and money. Service at the office of the claims representative is not possible as the adjuster is usually not authorized to take receipt of services and notifications. See, for instance, Court of Rotterdam, 23 September 2009, JA 2010,12.


A recent ruling of the European Court of Justice of 10 October 2013, C-306/12 (Spedition Welter/Avanssur) changed this.  The Court of Justice held that the writ of summons can also be served at the office of the insurer’s representative.


The case concerned a traffic accident that occurred near Paris on 24 June 2011, in which a lorry was involved of Spedition Welter, established in Germany. The French vehicle causing the accident was insured with the motor insurance liability insurer Avanssur established in France. Spedition Welter went to court to claim compensation. The writ of summons, however, was not served on Avanssur in France but on the representative designated by Avanssur in Germany, AXA Versicherungs AG (hereinafter: ‘AXA’).


The court in first instance held that the claim was inadmissible as the writ of summons had not been lawfully served on AXA as the latter was not authorised to take receipt of services and notifications.
Spedition Welter filed appeal with the Landgericht Saarbrücken. According to the Landgericht admissibility was decided by the interpretation of Article 21.5 of the Motor Insurance Liability Directive. For that reason the Landgericht submitted the case to the European Court of Justice.


Article 21.5 of the Directive says, in summary, that  claims representatives should possess sufficient powers to represent the foreign insurer and meet claims in full.  The article does not define the extent of those powers.


The European Court of Justice puts first and foremost that in determining the scope of an article its wording, context and objectives should be considered.  The objective of the Directive was to make it easier for victims of accidents to take action and to enable them to file claims in their own languages and countries.  The preamble to the Directive (paragraph 37) shows that Member States should ensure that claims representatives have adequate powers to represent the insurance undertaking in relation to persons suffering damage, before national authorities including the courts, insofar as this is compatible with the rules of private international law on the conferral of jurisdiction.


The European Court of Justice therefore reached the conclusion that Article 21.5 of the Directive should be interpreted to mean that the powers of the claims representative include taking receipt of court documents required to file a claim with the competent court.


This implies that in international traffic accidents in which the fifth Directive applies Dutch victims deciding to litigate in the Netherlands can now simply serve the writ of summons against the foreign insurer at the office of the Dutch claims representative.  For Dutch representatives this means an extension of their powers.


Commission recommends Member States to have collective redress mechanisms in place to ensure effective access to justice

The European commission in a press release of 11 June 2013 informed that it recommends Member States to have collective redress mechanisms in place to ensure effective access to justice.

“The European Commission has set out a series of common, non-binding principles for collective redress mechanisms in the Member States so that citizens and companies can enforce the rights granted to them under EU law where these have been infringed. The Recommendation aims to ensure a coherent horizontal approach to collective redress in the European Union without harmonising Member States’ systems. National redress mechanisms should be available in different areas where EU law grants rights to citizens and companies, notably in consumer protection, competition, environment protection and financial services. By recommending to Member States to put in place national collective redress mechanisms the Commission wants to improve access to justice, while ensuring appropriate procedural guarantees to avoid abusive litigation. The Recommendation complements the proposal for a Directive on antitrust damages which will help the victims of violations of antitrust rules to obtain compensation through the legal actions available in Member States (see IP/13/525, MEMO/13/531). While the Recommendation calls on Member States to put in place collective redress mechanisms, the Directive leaves it to Member States whether or not to introduce collective redress actions in the context of private enforcement of competition law.

“Member States have very different legal traditions in collective redress and the Commission wants to respect these. Our initiative aims to bring more coherence when EU law is at stake”, said Vice-President Viviane Reding, the EU’s Justice Commissioner. “This Recommendation is a balanced approach to improve access to justice for citizens while avoiding a US-style system of class actions and the risk of frivolous claims and abusive litigation.”

Vice President Joaquín Almunia, in charge of competition policy, said: “When they are victims of infringements of competition rules, citizens and businesses – particularly SMEs – often face strong obstacles in obtaining effective compensation. To overcome these difficulties we have proposed a Directive on antitrust damages actions. Since the harm may be shared by many injured parties, collective actions mechanisms should also be in place. This Recommendation is therefore a useful complement, sending a clear message to Member States.”

Consumer Policy Commissioner Borg added: “Today we are making an important step towards an EU framework for collective redress. We are inviting all EU Member States to equip EU consumers with the tools to enforce their rights and obtain compensation for the harm caused by violations of EU law. Member States should ensure that the collective redress procedures are fair, equitable, timely and not prohibitively expensive.”

Main Principles of the Commission Recommendation

The Commission’s Recommendation invites all Member States to have national collective redress systems and sets out a number of common European principles that such systems should respect:

Member States should have a system of collective redress that allows private individuals and entities to seek court orders ceasing infringements of their rights granted by EU law (so called “injunctive relief”) and to claim damages for harm caused by such infringements (so called “compensatory relief”) in a situation where a large number of persons are harmed by the same illegal practice.

Member States should ensure that the collective redress procedures are fair, equitable, timely and not prohibitively expensive.

Collective redress systems should, as a general rule, be based on the “opt-in” principle, under which claimant parties are formed through directly expressed consent of their members. Any exception to this principle, by law or by court order, should be duly justified by reasons of sound administration of justice. In parallel, the Recommendation stresses the need to provide information to potential claimants who may wish to join the collective action.

The Commission is recommending important procedural safeguards to make sure there are no incentives to abuse collective redress systems. Member States should for example not permit contingency fees risking creating an incentive for abuses. In addition, the entities which are representing claimants have to be of non-profit character, to ensure that they are guided by the interests of those affected in situations of mass damages. Another way of preventing abusive litigation is the prohibition of punitive damages which usually increases the economic interests at stake in such actions. Instead, full compensation should reach individuals once the court confirms that they are right in their claims.

The central role in the collective litigation should be given to the judge, who should effectively manage the case and be vigilant against any possible abuses. The Commission has not ruled out third party financing for European collective redress, but proposes conditions, in particular related to transparency, to ensure there is no conflict of interests.

The Recommendation also promotes Alternative Dispute Resolution, requiring that this possibility is offered to the parties on a consensual basis.

Next steps: The Recommendation asks Member States to put in place appropriate measures within two years at the latest. Two years after implementation of the Recommendation, at the latest, the Commission will assess the state of play, based on the yearly reports of the Member States to evaluate whether further measures to strengthen the horizontal approach reflected in the Recommendation are needed.


What is Collective Redress and why is it needed

Collective redress is a procedural mechanism which allows for reasons of procedural economy and/or efficiency of enforcement, many single claims (relating to the same case) to be bundled into a single court action. It is a broad concept that includes injunctive relief (lawsuits seeking to stop illegal behaviour) and compensatory relief (lawsuits seeking damages for the harm caused). It needs to be clearly distinguished from so-called “class actions” that are common under the US legal system. In Europe, collective redress procedures have been introduced in some Member States. However, where introduced these procedures vary widely.

The Commission, as a public authority and guardian of the EU Treaties, enforces EU law. In parallel, individuals, business and entities representing interests of different groups of society can seek enforcement of their rights under EU law in national courts. In some cases, the violation of EU law may trigger multiple individual lawsuits. In these cases collective redress can complement public enforcement. Current EU law already provides for the possibility of pursuing collective actions for injunctions in the field of consumer law, but the national legal systems vary considerably concerning financial markets, competition, environmental protection, and other areas of law. The situation is even more diverse among Member States when several consumers or businesses want to seek damages in the same case. In preparing its Recommendation, the Commission carried out a broad public consultation in 2011 to assess if and under what conditions a European approach to collective redress can bring added value to European citizens and businesses (IP/11/132). It also took into account the European Parliament’s Resolution “Towards a coherent European approach to collective redress” asking for a horizontal framework for collective redress.

Commission Action in the area of Collective Redress

The Commission has worked for several years on developing European standards of collective redress in the field of consumer and competition law. The Commission adopted a Green Paper on antitrust damages actions in 2005 and a White Paper in 2008, both of which include a chapter on collective redress. In 2011, the Commission carried out a public consultation, in which around 300 institutions and experts as well as 10,000 citizens expressed their views on the European framework for collective redress. The public consultation demonstrated a divergence of views among stakeholders and a need for balanced solutions.”

Corporate liability for human rights: the UN Guiding Principles on Business and Human Rights

If a corporation abuses employees, is accused of labour trafficking, complicit in gross human rights abuses by local governments, complicit of human rights violations while installing pipelines through villages or complicit in pollution, it should be held responsible. The question is if human rights laws also apply to these companies.

Some argue that international law only applies between states, or that human rights obligations apply only to states, and that the UN Principles cannot create legal obligations for companies. However, this view can no longer be credibly maintained. There is a growing acceptance that international human rights treaties create obligations – at least indirectly – on companies and that the UN Guiding Principles on Business and Human Rights can be used as a standard.

The UN Guiding Principles on Business and Human rights are the work of John Ruggie, former UN Secretary-General’s Special Representative for Business and Human Rights. The principles are non-legally binding, but aim to establish a global standard for addressing the adverse human rights impact of corporate activity. Ruggie has built a frame-work of three pillars: ‘ Protect, Respect and Remedy’.  These are:
The state’s duty to protect human rights;
the corporate responsibility to respect human rights;
the need for greater access to remedy – both judicial and non-judicial- for victims of business-related abuse.

The UN principles were endorsed by the UN Human Rights Council in June 2011. See also  (http://www.unglobalcompact.org/Issues/human_rights/The_UN_SRSG_and_the_UN_Global_Compact.html)
and the American Bar Association in February 2012.  They have also been incorporated into the OECD Guidelines for Multinational Enterprises, the International Organisation for Standardisation (ISO) 26000 guidance on social responsibility for companies , the sustainability policy of the International Finance Corporations and the European Commission’s new corporate social responsibility strategy.

The UN Principles are applicable to all governments and to all businesses in all situations. It sets forth basic, minimal business obligations regarding human rights. They reaffirm that states still bear the primary responsibility for promoting and protecting human rights, but recognize that transnational corporations and other businesses, as organs of society (and collections of individuals), carry responsibilities as well. It is understood that the human rights are – at a minimum – those expressed in the International Bill of Human Rights  and the principles concerning fundamental rights set out in the International Labour Organisation’s Declaration on Fundamental Principles and Rights at Work.

The responsibility to respect human rights requires that business enterprises:
Avoid causing or contributing to adverse human rights impact through their own activities , and address such impact when it occurs;
Seek to prevent or mitigate adverse human rights violations that are directly linked to their operations, products or services by their business relationships, even if they have not contributed to those violations.
In order to meet their responsibility to respect human rights, business enterprises should have in place policies and processes appropriate to their size and circumstances.

It is clear that the time has come for a stronger international framework for corporate accountability. The UN Principles are a significant contribution to this.  It provides a useful tool for lawyers dealing with human rights issues where corporations are involved.

Amsterdam, 12 May
Antoinette Collignon

Discovery in the Netherlands

Discovery  in the Netherlands. Disclosure of documents in civil claims.

If a party needs documents from another party in the Netherlands article 843a Code of Civil Procedure Rules (DCPR) (right to inspection) might be a tool to gain access to these documents.

In short article 843a DCPR enables a party to gain insight in documents that are not at his disposal. For a claim under this article it is necessary that requirements mentioned in article 843a are met. The elements are as follows:

  • The claim has to regard existing documents
  • The documents must be at the disposal of, or in possession of, defendant
  • The documents must be sufficiently determined
  • The documents must bear relevance to a legal relationship in which plaintiff is a party
  • The plaintiff must have a legitimate interest in the inspection, a copy or extract (hereinafter jointly: copy) of the documents
  • Rejection of the claim only for serious reasons and
  • Rejection of the claim if in the interest of a proper administration of justice is also guaranteed without a copy.

If you need further information please contact Legaltree

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New Dutch International Private Law & Non Contractual Obligations

If someone has had an accident abroad or is a victim of tort in another country it is important to determine which law is applicable. If proceedings are issued in the Netherlands the judges has to decide which law applies. As of 1 january 2012 a new Book 10 was added to the Dutch Civil Code in which the Dutch International Private Law is set out.  Title 14 of this book deals with the law applicable to non-contractual obligations.

Rome II
The new Book 10 of the Dutch Civil Code, title 14 refers to Rome II I Regulation (Regulation (EC) No 864/2007 of the European Parliament and the Council of 11 July 2007 on the law applicable to non-contractual obligations).

This not only includes tort, but also commitments arising from unjust enrichment (including undue payment), case detection and pre-contractual liability. Rome II is universally applicable. This means that any law specified by Rome II shall be applied whether or not it is the law of a Member State.

The exceptions: Hague Traffic Accidents Convention and Hague Products Liability Convention
Article 158 states that the application of Rome II does not affect the application of the Hague
Traffic Accidents Convention and the Hague Products Liability Convention. These conventions take precedence over Rome II (see also article 28 Rome II). This means that for cross border road traffic accidents and cross border product liability cases a Dutch court shall apply these conventions.

Rome II to apply to non contractual obiligations outside its scope (Article 159)
Before Rome II the Dutch court applied the WCOD (the Act regarding Conflict law of Non Contractual Obligations) in cases other than cross border road traffic accidents and product liability cases. The difference between the rules of the existing Dutch WCOD and Rome II is that the basic rule of WCOD is the lex loci delicti, with some exceptions, while
the general rule of Rome II is the lex loci damni (the country where the damage occurs), with some exceptions.
The substantive scope of Rome II coincides to a large extent with WCOD, with the exception of torts mentioned in Article 1 paragraph 2 of the Regulation including the liability for nuclear accidents and liability for breach of privacy and personality rights, such as defamation and libel. In these cases the Dutch WCOD still applied (unless other conflict
law applied).

Because it was deemed undesirable that different regimes exist next to each other, it was decided to apply Rome II mutatis mutandis to unlawful acts outside the scope of Rome II, provided that they are regarded as a tort. This means that there is now only one regime for cross-border torts in the Netherlands. Whether this is a good choice remains to be seen as in the drafting of the Rome II these torts have been excluded with reason.

Exceptions of Article 1 paragraph 1 Rome II
There is another category of non-contractual obligations from sources other than tort which neither fall under Rome II, nor under the WCOD, namely the non-contractual obligations mentioned in the list of exceptions in Article 1 paragraph 1 Rome II. This category does not fall under the Article 159 of Book 10 BW.

Transitional rules
The transitional law is governed by the Rome II treaty and is applicable to non contractual obligations from 11 January 2009.