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.

Children and road safety

From: http://ec.europa.eu/transport/road_safety/users/children/index_en.htm

Children are particularly vulnerable. Each year, more than 1100 children under the age of 15 are killed on European roads and 100.000 are injured.

Seat belts and child restraints

ChildrenUnder EU law, seat belts must be used in all vehicles. Children over 1.35 m can use an adult seat belt. Those under 1.35 m must use equipment appropriate to their size and weight when travelling in cars or lorries. It is now against the law to use a rear-facing child seat on the front passenger seat – unless the airbag has been deactivated.

The CHILD project looks into the ways children are injured in accidents. Its findings should help to improve the design of child restraints.

Children as cyclists and pedestrians

Teachers and parents can teach children about road safety as pedestrians (learning by doing). But children should have some formal training on basic traffic rules before they’re allowed to cycle on the road. Like adults, children should wear a helmet at all times when cycling.

The results of the ROSE 25 project include a booklet with European guidelines on road safety education for young people. The guidelines are based on the experiences of 25 EU countries.

 

 

 

Rights of patients in Cross border health care rights of patients set out in EU directive 2011/24

The directive has to be implemented in the laws of EU states by 25 October 2013. This website contains information on this new directive.

Cross-border cases. Why it is important to decide in early stage where to bring your case.

Many products and services originate from abroad, involving cross-border transport. If damage is sustained as a result of a traffic accident, the question arises if, where and against which party a liability suit may be initiated. The same applies for defective products and services. There are different ways of conducting litigation, collecting and assessing evidence,  limitation periods and the ways in which these are to be interrupted. In addition there are huge differences between the ways in which the merits of a case are judged.

In some countries it is possible to demand damages for surviving dependants, whereas such is not possible in the Netherlands. Damages and the way these are determined also vary from country to country. Furthermore court proceedings vary and costs of lawyers are assessed in a different way.

For all these reasons it is essential to decide at a very early stage before which court a case is to be brought and which law is to be applied.

For more information please check our website http://www.legaltree.nl/en/services/liability-and-insurance/

Fundamental rights in Europe. Information on new website of EC justice

All information regarding fundamental rights in the EU can be found on this revamped website of EC Justice.

New: WHO European report on preventing elder maltreatment.

This report highlights the biological, social, cultural, economic and environmental factors that influence the risk of being a victim or perpetrator of elder maltreatment, as well as the protective factors that can help prevent it. There is some evidence of effective interventions, including psychological programmes for perpetrators and programmes designed to change attitudes towards older people, improve the mental health of caregivers and, in earlier life, to promote nurturing relationships and learn social skills. (text from WHO website)

Connection between healthy ageing and neurodegenerative disorders

An international team of researchers partially funded by the EU has uncovered new information linking healthy ageing and neurodegenerative disorders including Alzheimer’s disease.

Council conclusions on innovation in medical device sector in Europe

Here is a link to the European Commission’s webpage which contains all relevant information on medical devices and the latest Council conclusion on innovation in the medical device sector.

Hospital emergency response checklist published by WHO

Hospitals help to provide communities with essential medical care, particularly in crises or disasters. To promote and give technical support to emergency preparedness for hospitals, WHO/Europe has published a “Hospital emergency response checklist”.

The tool can help hospital administrators and emergency managers to respond effectively to the most likely disaster and crisis scenarios. It comprises principles and current best practices for hospital-based emergency management, and brings together the priority actions required for rapid, effective response to a critical event, based on an all-hazards approach, which covers a large range of possible effects of risks and emergencies.

The checklist covers key components, each with a list of priority actions to support hospital managers and emergency planners in achieving:

– continuity of essential services;
– well-coordinated implementation of hospital operations at every level;
– clear and accurate internal and external communication;
– swift adaptation to increased demands;
– effective use of scarce resources;
– and a safe environment for health care workers

The checklist should complement existing multisectoral plans for hospital emergency management and augment standard operating procedures. It is also intended to be used for training and capacity building.

source: WHO/Europe