Archive for May, 2012|Monthly archive page

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.

New Dutch International Private Law (general principles)

If a client in a cross border case decides to issue proceedings in the Netherlands it is important to know which private international rules a Dutch court will apply. After all these rules determine which country’s law should apply.

The new Book 10 of the Dutch Civil Code  includes a number of general principles (Articles 1-5), and articles that can correct the initial referral result (Articles 6-9). Articles 10-14 contain a number of important legal concepts such as choice of law and form of legal acts. Finally, there are some provisions relating to the nationality of a person and the personal status of a refugee (Articles 15-17).

All these rules are common rules which Dutch courts already applied but which are now codified.

Article 1: Priority of regulations of international and community law
For example, in article 1 priority of regulations of international and community law over national rules is included. Although this seems unnecessary, the minister of Justice was of the opinion that it was desirable to codify this principle. It would be useful for lawyers and would provide clarification. Furthermore it is also included in many foreign codifications of private international law.

Article 2: Application ex officio
Article 2 provides that rules of private international law and the law designated by rules should automatically apply. The court may, and thus need not wait until one of the parties invokes applicability of foreign law.
In case a judge considers application of another law, while parties have not indicated possible application of this law during court proceedings, he is obliged to give parties the opportunity to comment thereon.
Article 3: Procedural rules
As indicated Book 10 contains no rules of a procedural nature. Article 3 only provides that Dutch law shall apply to the rules of procedure of legal proceedings before Dutch courts.
Article 5: No renvoi
Renvoi is, briefly stated, the practice in which private international law of the forum that was chosen according to the international private law rules of the other country also applies. This could lead to the result that according to the private international law of the chosen forum the law of another country applies. Under Dutch law there is no place for renvoi.
Article 5 therefore states that the application of the law of a State means the application of the rules of law in that State, with the exception of its private international law.

Article 8: General exception
In article 8 a general exception is included. It offers a correction for cases in which application of a rule of conflict is based on a presumed connection which is only limited and where there is a closer relationship another law.
This involves a situation where, given all the circumstances of the case, apparently the presumed close relationship ‘exists only in a very small extent “and” in which another country has a much closer connection.
The law designated by the conflict rule remains inapplicable and instead, the law with which the much closer connection can be used. This article should be applied by the court ex officio. Of course sufficient facts must be stated by parties that lead to application of the exception clause. If the court is considering the use of this clause, and it has not been mentioned during proceedings, parties must be given the opportunity to give their opinion.
The provision only applies to statutory rules and can not set aside regulations of international and community law.

Article 10: Choice of Law
Article 10 provides that where a choice is allowed, this must be made explicitly or otherwise be sufficiently clear.
This rule was developed in international contract law and is for example enshrined in article 3 Rome Convention and Article 3 Rome I. The idea is that parties engaging in international agreements have the freedom
to choose which law they want to apply. In other treaties, such as Rome II (Article 4), the possibility of choice is
also included. It is therefore codification of existing law.

Article 14: Limitation and lapse of claims
Article 14 provides that whether a legal claim has prescribed or lapsed shall be determined pursuant the law applicable to the legal relationship giving rise to such a right or legal claim. This is in accordance with Dutch case law and with prevailing doctrine. (Dutch Supreme Court of 27 May 1983, NJ 1983, 561).

New Dutch international private law (introduction)

If a client in a cross border case decides to issue proceedings in the Netherlands it is important to know which private international rules a Dutch court will apply. After all these rules determine which country’s
law should apply.
As of 1 January 2012 the Dutch have a new book 10 of their Civil Code. This book is a codification and consolidation of existing Dutch international private law. Although little seems to change it has made Dutch international private law much more accessible. In this blog I will discuss the content of Book 10 and several general articles and
Title 14 of Book 10, on the law applicable to non-contractual obligations.

A number of existing regulations regarding conflict law have been
brought together in Book 10.
Book 10 contains fifteen titles:
Title 1: General provisions,
Title 2: Name,
Title 3: Marriage,
Title 4: Registered partnership,
Title 5: Parentage,
Title 6: Adoption,
Title 8: Corporations,
Title 9: Agency,
Title 10: Law of property,
Title 11: Law of trusts,
Title 12: Inheritance law,
Title 13: Contractual obligations,
Title 14: Obligations from a source other than contracts
Title 15: Some provisions with regard to maritime law, the law of inland
shipping and aviation law.

The legislation encompasses mainly rules of reference that indicate which national law should apply in private legal relations with cross border or foreign elements. Reference is made to several European treaties and regulations.
The act doesn’t contains rules of a procedural nature, such as rules onjurisdiction and rules relating to recognition and enforcement of judgments. These rules are included in the Dutch Civil Procedure Code.