Archive for the ‘defamation’ Tag

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.