Encyclopedia of Private International Law
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Encyclopedia of Private International Law

Edited by Jürgen Basedow, Giesela Rühl, Franco Ferrari and Pedro de Miguel Asensio

The role and character of Private International Law has changed tremendously over the past decades. With the steady increase of global and regional inter-connectedness the practical significance of the discipline has grown. Equally, so has the number of legislative activities on the national, international and, most importantly, the European level. With a world-class editor team, 500 content items and authorship from almost 200 of the world’s foremost scholars, the Encyclopedia of Private International Law is the definitive reference work in the field. 57 different countries are represented by authors who shed light on the current state of Private International Law around the globe, providing unique insights into the discipline and how it is affected by globalization and increased regional integration. The Encyclopedia consists of three inter-linked pillars, enhanced by sophisticated search and cross-linking functionality. The first pillar consists of A-Z coverage of the scope and substance of Private International Law in the form of 247 entries. The second pillar comprises detailed overviews of the Private International Law regimes of 80 countries. The third pillar presents valuable, and often unique, English language translations of the national codifications and Private International Law provisions of those countries. This invaluable combination represents a powerful research tool and an indispensable reference resource.
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Netherlands

I. Sources of private international law

1. Major legislation

Dutch private international law cannot be found in one comprehensive code. Rules on jurisdiction and on the recognition and enforcement of foreign judgments are laid down in the Dutch Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering, available at <http://wetten.overheid.nl>, henceforth CCP). Choice-of-law rules are mainly set out in Book 10 of the Dutch New Civil Code (Nieuw Burgerlijk Wetboek of 1 January 1992, <http://wetten.overheid.nl>, henceforth CC). Case-law is nonetheless an important source of law in relation to the recognition and enforcement of foreign judgments. The Netherlands is subject to many treaties and European regulations and European directives which encompass private international law rules that prevail over the regulations established in the CCP and Book 10 of the CC.

2. p. 1International conventions

As an EU Member State, the Netherlands is subject to all legislative instruments concerning judicial cooperation in civil matters except for the so-called European Union Divorce Law Pact or the →Rome III Regulation (non-contractual obligations) (Council Regulation (EU) No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation, [2010] OJ L 343/10) (→Divorce and personal separation). The Netherlands has concluded several bilateral treaties on recognition and enforcement of foreign judgment with several European states. The Brussels I Regulation (recast) (Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast), [2012] OJ L 351/1) has rendered these bilateral treaties superfluous (→Brussels I (Convention and Regulation)), but they keep their significance in certain areas of law like →succession and →matrimonial property law. The Netherlands is a party to numerous multilateral treaties. A complete list can be found at <www.minbuza.nl/producten-en-diensten/verdragen>.

3. Role of case-law

Case-law has traditionally been an important legal source of Dutch private international law. The absence of extensively codified private international law rules has prompted the judiciary to define and clarify private international law rules. However, the authority of the High Court to define private international law has long been limited because up until 1963 it could only ascertain if arts 6, 7 and 10 of the General Provisions Act 1829 (Wet van 15 mei 1829, houdende algemeene bepalingen der wetgeving van het Koningrijk, Stb 1829, 28) would potentially be violated. When, in 1963, the High Court obtained the authority to verify if a decision would constitute a violation of the law in general, it established comprehensive private international law rules.

The ramifications of European legislative instruments, the conclusion of various treaties and the thorough codification of Dutch private international law rules have progressively reduced the judiciary’s role in further defining private international law rules. However, the judiciary remains important for national private international law in view of the fact that Dutch private international law, like most other countries, is deprived of an unequivocal theoretical framework and, as such, new interpretive issues continue to emerge.

4. Role of doctrinal writing

In the absence of underlying statutes, clear-cut precedential judicial decisions and non-existence of a comprehensive theoretical framework, more interpretive weight was given to scholarly literature. Dutch private international law has therefore depended considerably on legal scholars. Nowadays Dutch private international law has been codified to a large extent.

5. Private interregional law

The Kingdom of the Netherlands consists of four independent parts (countries); the Netherlands (including the three special Caribbean municipalities Bonaire, Sint Eustatius and Saba) and Aruba, Curaçao and Sint Maarten, which are located in the Caribbean. In October 2010, the Netherlands Antilles was dissolved and two new constituent countries of the Kingdom of the Netherlands were created, ie Curaçao and Sint Maarten. The dissolution concerned is a modification of internal constitutional relations within the Kingdom of the Netherlands and the kingdom as such is the subject of international law with which treaties are concluded. This change in the interior structure of the Kingdom has subsequently had no impact on the treaties concluded by the kingdom which applied to the former Netherlands Antilles.

The countries within the kingdom have (self-legislating powers and) distinct codes which, despite the correlation principle laid down in art 39 Charter of the kingdom (Wet van 28 October 1954, houdende aanvaarding van een statuut voor het Koninkrijk der Nederlanden, Stb 1954, 503), differ from each other.

As a result, private international law questions as to the competent court, the application of law and the recognition and enforcement of judgments arise within the kingdom. The legislation that resolves such questions is referred to as the interregional private law. And although such interregional law corresponds to private international law, it does encompass divergent principles (→Interregional/Interstate law). p. 1This variance originates partly from the special state relationship between the four countries of the kingdom.

The Supreme Court, which constitutes the principle judicial body of the kingdom, has not ventured to formulate uniform rules of interregional law for all parts of the kingdom. In fact, in 2008, the Supreme Court (Hoge Raad (HR) 11 July 2008, ECLI: NL: PHR: 2008: BD0663) confirmed that the independent parts of the kingdom should draw on their own interregional law rules. If no such applicable rules exist, a solution should be sought using analogously and, if necessary, adapting the private international law rules of the country involved.

The rules on interregional jurisdiction indicate under what circumstances and conditions the Dutch court has jurisdiction to hear and determine an interregional claim. These rules, however, do not determine if a judge from another part of the kingdom has jurisdiction over the subject matter. Such power is conferred upon by the interregional laws on jurisdiction of Aruba, Curaçao and Sint Maarten. The Dutch judiciary tends to refer to the domestic laws on jurisdiction in the absence of relevant interregional rules. In principle, a Dutch court will exercise jurisdiction in interregional matters if it would have such power in a domestic setting.

The interregional choice-of-law rules are based on the principle of closest connection and the private international law rules of the constituent countries of the kingdom are generally suited for analogous application in interregional matters. Yet, such analogous application can lead to unjustified outcomes on socially sensitive issues such as →same-sex marriages. In the literature it is suggested that unjustified consequences of the application of domestic conflict of laws should be assessed on the basis of the principles of decisional harmony and equality.

Within the kingdom →nationality cannot serve as a functional connecting factor since it is not distinctive. For that reason habitual residence (→Domicile, habitual residence and establishment) is the predominant →connecting factor applied.

On the subject of interregional recognition and enforcement of law art 40 of the charter for the kingdom is significant. Under this provision, all judicial instruments (judgments, court orders, decrees) and authentic deeds are reciprocal by nature and have legal force in all countries of the kingdom. They hence constitute a single jurisdiction in which recognition and enforcement is unneeded.

The direct effect of judicial and authentic deeds within the kingdom does not only pertain enforcement and evidence. With regard to authentic deeds it also concerns the susceptibility to registration and recording of such acts inclusive of their content (Supreme Court of the Netherlands (HR) 13 April 2007, LJN: AZ 6095). Consequently, the →public policy (ordre public) exception, for example, cannot be invoked in relation to the registration of an in the Netherlands concluded same-sex marriage in Aruba, even if such a →marriage is viewed to be incompatible with fundamental values of the Aruban community.

II. History and development of private international law

The codification of Dutch private international law dates back to 1829. The first codification, the General Provisions Act (Wet van 15 mei 1829, houdende algemeene bepalingen der wetgeving van het Koningrijk, Stb 1829, 28), regulated private international law in arts 6, 7 and 10, which reflected the main rules of the Statutist theory (statuta personalia, statuta realia and statuta mixta) (→Unilateralism). These rules, however, were from the second half of the 19th century on interpreted by the courts and scholars in a way corresponding with the theory of Savigny (→Savigny, Friedrich Carl von (multilateral choice-of-law rules)). When, in 1963, the Supreme Court obtained the authority to verify whether or not a ruling constitutes a violation of the law in general, the development of the private international law mounted. Over the years choice of forum (→Choice of forum and submission to jurisdiction), the protection principle (protection of for instance weaker parties like minors, workers and consumers, by applying the law of their habitual residence) and the favour principle (favouring the application of a law which provides a desirable result to the question involved) acquired a permanent position in Dutch private international law.

However, there was a growing need in the legal practice for fixed rules in the area of private international law. This made the Dutch legislator decide to codify private international law at the national level. It opted for a gradual codification by establishing separate laws on p. 1particular subjects: a step-by-step approach. From the start it was the legislature’s intention to merge (consolidate) these laws into a comprehensive law on private international law at a later date. Thus, between 1981 and 2008, a total of 16 laws relating to private international law were established. These laws have since 1 January 2012 been combined in Book 10 of the Dutch Civil Code and a general part was added.

Book 10 CC was not intended fundamentally to review the existing choice-of-law rules. The aim was to attune the various existing acts to each other as well as to the general provisions. According to the legislator practical application is paramount. Book 10 CC thus provides no place for making dogmatic statements about theoretical issues. In response to developments in practice and new insights in case-law and literature an amendment was only made on a few points. Book 10 CC does not signify the end of the codification of private international law. In the future, supplementary legislation will be established.

III. Administration of private international law

1. Courts and non-judicial authorities

Dutch law applies to the procedure of litigation before a Dutch court. This rule of art 10(3) CC shall apply accordingly to the functioning of other officials who have a role in private law, such as a notary, a registrar, a bailiff, the council for child protection and the central authorities created on the basis of Hague Conventions and EC instruments. They are to adhere to their lex magistratus. The rule also applies to →provisional measures and the enforcement of judgments and deeds.

Under art 2 CC (‘The rules of private international law and the law designated by those rules are applied ex officio’), the judge, the notary or the registrar, has to apply both Dutch private international law and the law designated by these choice-of-law rules ex officio. Article 2 confirms the view prevailing on this point in the Netherlands. The legislator thus rejects the doctrine of →optional (facultative) choice of law (→Choice of law). The rules of art 2 shall also apply to the uncodified conflict of laws (in case-law), the public policy exception (art 10(6) CC) and the general exception of art 108 CC.

2. Application of foreign law

Based on art 10(2) CC, the court should on its own initiative and independent of the view of the parties, gather full information on the content of the foreign law (ius curia novit) (→Foreign law, application and ascertainment). It may, however, be informed about the content of that law by the parties. According to the legislature, foreign law should be applied in the same way as in that country itself, ie including, for example, case-law and literature on views on issues such as the method of legal interpretation.

IV. Basic principles of jurisdiction

1. General

Provisions on jurisdiction of the Dutch courts are included in arts 1 to 14 CCP. A distinction, thereby, is made between summons and petition procedures. A miscellany of related provisions is found elsewhere in the law, both in the CCP and other laws. These modalities have residual function only since European regulations and other treaties prevail over national rules of jurisdiction.

2. Main rule: forum rei

Pursuant to art 2 CCP, the competent Dutch court summons cases if the defendant is domiciled or habitually resides in the Netherlands (the forum rei). The internal law concept of residence is defined in art 1(10) CC. In addition to residence, jurisdiction may also be based on habitual residence. If the defendant constitutes a legal person, the place of the registered office is regarded to be the place of statutory seat (art 1(10) CC). Likewise, legal action can be taken against foreign juridical persons with a branch or office in the Netherlands (art 1(14) CC).

In addition to the main rule of art 2 CCP, a Dutch court may accept jurisdiction on the basis of special rules of jurisdiction referred to in art 6 CCP. It concerns special categories of legal acts.

3. Contractual obligations

Pursuant to art 6 CCP, a Dutch court has jurisdiction if the obligation on which a claim is based should be carried out or performed in the Netherlands. Article 6(a) CCP provides, in accordance with art 5(1)(b) Brussels I Regulation (Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, [2001] OJ L 12/p. 11) (art 7(1)(b) Brussels I Regulation (recast) (→Brussels I (Convention and Regulation))), that unless otherwise agreed, the →place of performance is located in Netherlands if: (i) in the case of the sale of goods, under the contract, the goods were delivered or should have been delivered in the Netherlands; and (ii) in the case of the provision of services under the contract, the services were provided or should have been provided in the Netherlands.

4. Individual employment contracts and agency agreements

In matters relating to individual employment contracts or agency (→Agency and authority of agents; →Commercial agency, franchise and distribution contracts), Dutch courts have jurisdiction if the employee or agency habitually carries out his work in the Netherlands or if it was the last place where he did so. A special regime applies to temporary work (art 6(b) CCP).

5. Consumer contracts

A contract concluded between a professional party or a business and a natural person who is neither a professional nor acting commercially is subject to the jurisdiction of the Dutch court, if the natural person is domiciled or has habitual residence in the Netherlands and has performed all necessary acts to conclude the contract hereabouts. As such, the Dutch court has jurisdiction as a forum actoris if the consumer is a claimant (art 6(c) CCP).

6. Torts

In matters of tort a Dutch court has jurisdiction if the harmful event concerned occurred or may occur in the Netherlands (art 6(e) CCP).

7. Real rights to immovable property

In respect of rights in rem, as well as tenancies and lease (→Lease contracts and tenancies), a Dutch court has jurisdiction if the property concerned is located in the Netherlands (art 6(f) CCP) (→Immovable property).

8. Succession

According to art 6(g) CCP the court of the district in which the deceased was domiciled or had his last habitual residence has jurisdiction over claims between heirs, claims of creditors on the estate, or other legal claims concerning the last will of the deceased (→Succession).

9. Companies and other legal entities

Article 6(h) CCP provides that a Dutch court has jurisdiction regarding the validity, nullity or the dissolution of →companies or legal entities established in the Netherlands as well as the validity, nullity or legal consequences of decisions by their bodies, or the rights and obligations of their members or associates as such. It should be noted that this rule is of little practical significance due to art 22(2) Brussels I Regulation (art 24(2) Brussels I Regulation (recast)).

10. Other provisions

A Dutch court has jurisdiction if parties have contractually appointed this particular court to hear disputes, provided that the (legal) act concerned is susceptible to such agreement and provided that a reasonable interest with respect to the particular legal relationship is present (choice of forum, art 8 CCP). Tacit choice of court (agreements) are governed by art 9(a) CCP; if a legal relationship is subject to the discretion of the parties involved and the defendant or interested party in the proceedings does not appear (entirely of partially) in court for purpose of contesting the jurisdiction of the Dutch court, such has jurisdiction, unless no reasonable interest subsists.

In addition, the CCP contains rules regarding multiple defendants (→Multiple defendants and joint liability) and counterclaims (art 7 CCP), and the so-called forum necessitatis in which case jurisdiction is accepted if a similar legal proceeding proves impossible or unacceptable outside of the Netherlands (art 9(b) and (c) CCP).

Jurisdiction based on attachment is governed by art 767 CCP (forum arresti). A Dutch court has jurisdiction as to the defendants’ attached property that is located in the Netherlands or which is held by a third party in the Netherlands (garnishment). As such the Dutch court is competent as judge of attachments. However with respect to such preservation of property located in the Netherlands, international jurisdiction is only available if p. 1an enforceable foreign judgment permitting enforcement cannot be acquired by other means and if no other ground for jurisdiction (arts 1–9 and 11–14 CCP) exists. Article 767 CCP also does not apply in the event that the parties agreed to an exclusive choice of forum.

General exceptions to jurisdiction rules discussed above are found in the rules on →lis alibi pendens and →immunity from jurisdiction.

11. Petition procedures

As a general principle in petition procedures, Dutch courts have jurisdiction if an applicant, one of the applicants, or an interested party is domiciled or habitually resident in the Netherlands (art 3(a) CCP). In addition to this general principle, a number of specific rules apply.

12. Interim proceedings

There are no separate jurisdictional rules with regard to interim proceedings.

V. Basic principles and methods of choice of law

1. Book 10 CC

Book 10 of the Civil Code serves as a codification of an important part of private international law. The book systematically gathers a large number of choice-of-law rules. The Dutch legislator has intended to provide a framework for legal practice by codifying general principles supplemented by carefully matched specific provisions.

2. General provisions

Book 10 CC seeks to establish a coherent regime of newly designed general provisions and existing choice-of-law acts.

Article 10:1 CC reminds legal practice that the provisions on private international law contained in this Book 10 CC and in other legal instruments do not affect the international and European instruments by which the Netherlands is bound. Since these international and supranational laws almost invariably concern provisions binding on all, the precedence of these rules over national rules already follows from art 94 of the Constitution (Grondwet voor het Koninkrijk der Nederlanden van 24 Augustus 1815, available at <http://wetten.overheid.nl>, last accessed on 30 April 2015). With regard to European Union law, this primacy follows from European Union law.

Article 10:4 CC deals with preliminary questions (→Incidental (preliminary) question):

If the question as to which legal consequences are to be attributed to a fact by way of a preliminary question should be answered in connection with another question that is subject to foreign law, the preliminary question is to be considered an autonomous question.

This is the prevailing view in Dutch jurisprudence and literature. It is in line with the rejection of →renvoi. Where Dutch rules are drawn from national values and principles it is illogical to surrender these rules for the benefit of an international harmony of decisions.

According to art 10:5 CC, the application of the law of a state refers to the application of the rules of that law with the exception of private international law. This provision codifies a fixed rule of uncodified private international law. According to the legislator, the acceptance of →renvoi leads to legal uncertainty and possibly places a heavy burden on the Dutch court and the legal representatives of the parties, especially when one considers that codified rules of private international law are not always readily available. If one rejects renvoi by remission then it is evident not to accept renvoi by transmission. Indeed, this provides the easy solution that the Dutch court can apply Dutch substantive law, but the acceptance of remissions can easily lead to a vicious circle. Furthermore, it is difficult to explain why, in fact, foreign private international law should determine whether or not the applicable Dutch rule of private international law should be applied in the particular case. Article 10(5) CC excludes both renvoi by remission and renvoi by transmission.

Foreign law will not be applied where its application is manifestly incompatible with public policy (art 10:6 CC). The possibility of correction of the result of a choice-of-law rule covers cases in which there is a conflict with fundamental values and principles of the Dutch legal order. It is not sufficient that the designated foreign legal system, even if significantly, differs from Dutch law. In other words, a correction by means of public policy is only granted in exceptional cases. In art 10(6) CC this is, following the terminology of many treaties, expressed by the expression ‘manifestly incompatible’.

p. 1With regard to the fundamental values and principles that can play a part within the framework of examining →public policy (ordre public) a distinction is drawn between (i) the content of foreign law and (ii) the consequences of the application of foreign law in a particular case (→Foreign law, application and ascertainment). The first category concerns laws that are unacceptable on the basis of their content. It concerns cases in which the lines of what is proper and permissible for a legislator according to Dutch standards are crossed. In the second category of cases it concerns the designated applicable foreign law that is not in itself according to its content unacceptable. This law will still be denied application where its application would lead to a consequence that would be intolerable according to Dutch notions. Under this test, the circumstances of the case, particularly the involvement of the Netherlands, play an important part. The greater the Dutch involvement, the sooner a conflict with public policy will arise.

Foreign public policy as such is not captured by this article. Nevertheless, this, according to the legislator, does not preclude the court from, where appropriate, weighing in its assessment the inconsistency of the provisions of the applicable law with the public policy of a state with which the case is closely connected. All this is reminiscent of the use of third-state overriding mandatory rules (→Overriding mandatory provisions). The conditions under which the court should take into account foreign public policy remain unclear.

It is important to convey that the designated foreign law shall only be denied application insofar as its application would be contrary to →public policy (ordre public). This requires a certain restraint in handling the instrument of public policy. Which law should be applied in case of a successful appeal on the public policy exception? The legislator believes that it would be inadvisable to provide general rules on the designation of the applicable law. Instead, the court deciding on the matter should give a decision in light of the circumstances of the case. If, as may be the case, no other (foreign) law emerges as applicable, the application of the →lex fori, ie Dutch law, would be an obvious solution for filling the resulting gap.

Article 10:7 CC contains a description of provisions of overriding mandatory law which are described as rules ‘that, by law, or by their apparent meaning, require application regardless of the law designated by the choice-of-law rule’. These are mandatory rules that are partially or exclusively designed to protect public interests. Examples include rules on economic planning law, as set out in the Competition Act (Wet van 22 mei 1997, houdende nieuwe regels omtrent de economische mededinging (Mededingingswet), Stb 1997, 430) and foreign exchange regulations. As provided by art 10:7(2) CC, overriding mandatory rules take precedence over the law designated as applicable (→Overriding mandatory provisions). This supremacy only applies insofar as the overriding mandatory rule is applicable: outside the scope of the overriding mandatory rule the law designated by the choice-of-law rule remains applicable.

It should be noted there are situations in which a scope rule, ie a rule defining the geographical scope of a provision, is connected to a provision of Dutch law (see for example art 6:247 CC and art 6 Buitengewoon Besluit Arbeidsverhoudingen, Besluit van 5 Oktober 1945 (Stb 1945, F 214)). Insofar as a particular case falls within the scope of a Dutch scope rule, the court must apply Dutch law, regardless of which law would be designated by the choice-of-law rule that would otherwise apply. In such a case, assessing whether the provision to which the scope rule applies should be regarded an overriding mandatory rule is no longer an issue, nor is an assessment of the question what the result of application of the conflict-of-law rule would have been. In short, the third paragraph entails that the court must be mindful of foreign overriding mandatory rules in its considerations, in the sense that it must consider, on the basis of the aspects mentioned in the second sentence, whether to give effect to this overriding mandatory provision, in other words, whether this entails that the law designated by the conflict-of-law rule must not be applied, either in whole or in part. The third paragraph not only applies to so-called third-state overriding mandatory rules, but also to second-state overriding mandatory rules, meaning the overriding mandatory rules of the lex causae. This is related to the principle of Dutch private international law that the lex causae, the substantive law designated by a specific choice-of-law rule, not merely includes rules that emerge as overriding mandatory rules because they (also) serve to protect public interests. The court will therefore, in every individual case, have to determine whether these rules indeed require application as overriding mandatory rules.

p. 1Article 10:8 CC provides a possibility for correction in a certain category of cases, namely those in which, in short, application of a choice-of-law rule which is based on the connection factor of the closest connection provides an unacceptable result. It concerns the situation in which, taking into account all circumstances of the case, the generally presumed closest connection apparently ‘is hardly existent’ and ‘a much closer connection exists to another law’. Hence, the law designated by the choice-of-law rule remains inapplicable, and instead, the law with which the much closer connection exists shall be applied. Not only does the closest connection need to be determined on the basis of objective factors, these factors may only be considered on the basis of considerations of private international law, related to the uniformity and effectiveness of solutions. Substantive considerations, such as the content of the designated law or the intended practical result should be disregarded. This is in line with the fact that – as follows from the wording of the article – provisions which are based on the principle of favour or the principle of protection are not covered by this article.

Article 10:9 CC provides for the so-called fait accompli exception:

In the Netherlands, the same legal consequences may be attributed to a fact to which legal consequences are attributed ensuing the law which is applicable under the private international law of a foreign state involved, in contravention to the law applicable according to Dutch private international law, as far as not attaching those consequences would constitute an unacceptable violation of the legitimate expectations of the parties or of legal certainty.

The aim of the provision is to intervene where the result of a Dutch choice-of-law rule is unacceptable because the parties assumed a foreign choice-of-law rule that designates a different law to be applicable. This relates to the question whether legal consequences can be connected to a fact or act in accordance with the legal system deemed applicable by a foreign choice-of-law (rule), even where these legal consequences do not result from those facts or actions according to the law deemed applicable by Dutch →choice of law. Dutch choice of law should step aside in favour of foreign choice of law. This cannot simply be; the parties must have been justified in relying on the assumption that their legal position was determined by the law designated applicable by the closely connected foreign conflict of laws. Moreover, dishonouring this assumption should surely be unacceptable. Application of the fait accompli exception may also be an issue when withholding foreign legal consequences amounts to an unacceptable violation of legal certainty.

The exception consists of three elements which have to be cumulatively fulfilled before the Dutch choice-of-law rule can withdraw in favour of the foreign choice-of-law rule:

  1. the Dutch choice-of-law rule refers to a different law to the choice-of-law rule of the foreign state involved;

  2. the parties have legitimate expectations that their legal position is determined by the law which is applicable according to the choice-of-law rule of the foreign state;

  3. failure to grant that legal position, determined by the law applicable by virtue of the choice-of-law rule of the foreign state, forms an unacceptable violation of that legitimate expectation and of legal certainty.

The wording of the provision ‘legal consequences may be attributed’ indicates that the court is not obliged to apply the exception even if the three aforementioned requirements have been fulfilled. Thus, it is up to the court to determine whether it will apply the exception.

The fait accompli exception as general principle has been heavily criticized among Dutch scholars. The prevailing view is that such principle will not come into play in legal practice.

As far as a professio iuris is allowed, it should be made expressly or be otherwise sufficiently clear (art 10:10 CC). The presumed professio iuris, ie the choice of a particular legal system that is solely based on the assumption that the parties would have chosen that law had they taken the question of the applicable law into account, is rejected. A professio iuris should therefore be expressly made. This does not exclude the implied professio iuris. This can also be derived from the circumstances of the case. As with any general provision, special provisions may deviate from it (ie art 10:56(3) CC and art 10:77 CC).

The question whether an individual is a minor is governed by his national law. Under Dutch law the minor is incapacitated. The same goes for the adult under guardianship. The question p. 1whether someone is competent to perform legal acts is governed by his national law (art 10:11 CC). Where the person holds dual →nationality and is habitually resident in one of those states, then the law of that state applies. This rule is intended to promote practical usability and applies irrespective of whether the habitual residence is in the Netherlands or another country and whether any of the nationalities is Dutch. Only when the incapacitated person is not habitually resident in one of the states whose nationality he possesses must it be determined, on the basis of the circumstances, to which state the closest connection exists. In art 10:11(2) CC, the former ‘Lizardi rule’ is codified. This rule seeks to protect the counterparty of a person who relies on his own incapacity. Article 13 of the Rome I Regulation (Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I), [2008] OJ L 177/6; →Rome Convention and Rome I Regulation (contractual obligations)) applies accordingly to multilateral legal acts that are beyond the scope of the regulation. This rule only covers natural persons, but the legislator does not preclude analogical application to restrictions on the competence of individuals that represent a legal entity.

3. Name

The surname and the forenames of a foreigner are determined by the law of the state of his →nationality (→Names of individuals). The term law is also taken to include the rules of private international law (art 10:19 CC). The surname and forename of a person who has Dutch nationality are determined according to Dutch law irrespective of whether he possesses another nationality (art 10:20 CC).

4. Marriage

A →marriage will be solemnized if each of the future spouses meets the requirements of Dutch law for the conclusion of a marriage and one of them exclusively possesses Dutch →nationality or possesses Dutch nationality in addition to another or has his habitual residence in the Netherlands or each of the future spouses meets the requirements for the conclusion of a marriage of the state whose nationality he possesses (art 10:28 CC). The concept of marriage includes →same-sex marriage.

According to art 10:35 CC, the personal legal relations between the spouses themselves are governed by the law that the spouses have chosen prior to or during their marriage. The spouses can only designate the law of the state of the common nationality of the spouses, or the law of the state where they both have their habitual residence. In the absence of a designation of the applicable law, the personal legal relations between the spouses themselves are governed: (i) by the law of the state of the common nationality of the spouses; or in the absence thereof (ii) by the law of the state in which they both have their habitual residence; or in the absence thereof (iii) by the law of the state with which, having regard to all circumstances, they are most closely connected.

With regard to the question of the law applicable to the matrimonial property regime of spouses, three different periods are distinguished:

  1. marriages concluded before 23 August 1977 (subject to the Convention on the Effects of Marriage 1905 or subject to the Chelouche/Van Leer ruling);

  2. marriages concluded on or after 23 August 1977 and before 1 September 1992 (subject to the Chelouche/Van Leer ruling); and

  3. marriages concluded on or after 1 September 1992 (subject to the Convention on the Law applicable to Matrimonial Property Regimes 1978).

The basic principle is that the choice-of-law rule applicable to →matrimonial property rights on the date of marriage determines the applicable law for the duration of the marriage.

In accordance with the Chelouche/Van Leer ruling (Supreme Court of the Netherlands (HR), 10 December 1976, NJ 1977.275), the matrimonial property regime of the spouses is governed by:

  1. the law designated by the spouses;

  2. their common national law at the time of marriage;

  3. the law of the state in which both spouses establish their first habitual residence after marriage;

  4. the law of the state with which, taking all circumstances into account, it is most closely connected.

The selection of laws implicated in sub a) is similar to those in art 3 of the Hague Matrimonial Property Convention (Hague Convention of 14 p. 1March 1978 on the law applicable to matrimonial property regimes, 16 ILM 14).

Dutch law applies to the dissolution of a marriage in the absence of a choice of law. According to the legislator this provides a practical solution that corresponds to the legal practice under art 1 Conflict of Laws on Divorce Act (available at <http://wetten.overheid.nl/BWBR0003384/geldigheidsdatum_02-08-2011>). Article 10:56(2) CC offers the possibility to set aside the application of Dutch law by choosing the common national law. Given the nature of art 56, it is unlikely that the Rome III Regulation will enter into force in the Netherlands in the near future.

5. Registered partnership

The conclusion of →registered partnerships in the Netherlands is subject to the provisions of art 80a of Book 1 CC. Dutch law governs the capacity of each of the partners (→Capacity and emancipation) entering into a registered partnership in the Netherlands. Where the formal validity is concerned, a registered partnership may only be lawfully entered into in the Netherlands before a registrar of births, deaths, →marriages and →registered partnerships in accordance with Dutch law, save the power of foreign diplomatic and consular civil servants to cooperate in the entry into a registered partnership in accordance with the provisions of the law of the state represented by them, if neither party exclusively possesses Dutch nationality or possesses Dutch nationality in addition to another. A registered partnership lawfully entered into outside the Netherlands or that has subsequently become lawful under the law of the state where the registered partnership was entered into will be recognized as such.

The personal legal relations between the partners themselves are governed by the law that the partners have chosen prior to or during their marriage, whether or not to amend an earlier designation. In the absence of a designation of the applicable law, the personal legal relations between the partners who enter into a registered partnership in the Netherlands are governed by Dutch law. If the partners have entered into a registered partnership outside the Netherlands, their personal legal relations are governed by the law, including the rules of private international law, of the state where the registered partnership was entered into.

The property regime of a registered partnership is governed by the law that the partners have designated prior to their registered partnership. In all cases the partners may solely designate a legal system which recognizes the concept of registered partnership. If the registered partnership is entered into in the Netherlands and the partners have not designated the applicable law prior to their registered partnership, their partnership property regime is governed by Dutch law. If the registered partnership has been entered into outside the Netherlands and the partners have not designated the applicable law prior to their registered partnership, their partnership property regime is governed by the law, including the rules of private international law, of the state where the registered partnership has been entered into.

6. Familial legal relations

The applicable law to familial legal relations is primarily governed by the national laws of the persons involved (Title 5, Book 10 CC). However the afore-mentioned favour principle under circumstances also plays a role.

7. Adoption

The →adoption to be pronounced in the Netherlands is in principle governed by Dutch law (art 10:105 CC). With respect to such adoption, the establishment and breaking of familial legal relations have the legal effects conferred thereto by Dutch law (art 10:106 CC).

8. Other family matters

Title 7 of Book 10 CC refers to the international instruments governing parental responsibility and child protection, international →child abduction and maintenance.

9. Corporations

The Netherlands applies the incorporation theory (→Companies); a corporation is governed by the law of the state in which it has its seat at the time of its establishment, ie the law of the state of its incorporation (art 10:118 CC). The term corporation includes: a partnership, association, cooperative, mutual insurance society, foundation and any other body operating externally as an independent entity or organization and joint ventures.

10. p. 1Representation

According to art 10:125 CC, the law applicable to representation is determined by the Hague Agency Convention (Hague Convention of 14 March 1978 on the law applicable to agency, Hague Conference of Private International Law (ed), Collection of Conventions (1951–2009) (Intersentia 2009) 268) (→Agency and authority of agents; →Commercial agency, franchise and distribution contracts).

11. Property law

The property law regime relating to objects (→Property and proprietary rights) is governed by the law of the state on whose territory the object is located (art 10:127 CC). Such law determines in particular whether an object is movable or immovable; what a component of an object is; whether an object is susceptible to transfer of ownership thereof or the creation of a right in respect thereto; which requirements are posed to a transfer or creation; which rights can be attached to an object and what the nature and content of these rights are; in which way those rights arise, alter, pass and perish and what their mutual relation is.

Title 10 of Book 10 CC provides specific rules regarding the property law aspects of: retention of title, conflit mobile, stolen goods, international transport of goods, claims, shares and book-entry securities.

Title 11 of Book 10 CC contains provisions related to the Hague Trust Convention (Hague Convention of 1 July 1985 on the Law Applicable to Trusts and on their Recognition, 1664 UNTS 311), which is in force in the Netherlands.

12. Succession

The applicable law to succession is determined by applying the rules of the Hague Succession Convention (Hague Convention of 1 August 1989 on the Law Applicable to Succession to the Estates of Deceased Persons, available at <www.hcch.net>) (Trb 1994, 49) (art 10:145 CC) (→Succession). According to art 10:149 CC, the settlement and division of an estate of a deceased with last habitual residence (→Domicile, habitual residence and establishment) in the Netherlands is governed by Dutch law. Heirs to the estate, however, are still free to declare another law applicable to the division. The duties and authority of the (foreign) administrator is also governed by Dutch law in the event the deceased had his last habitual residence in the Netherlands (art 10:150 CC). In the event that the deceased had his last habitual residence outside the Netherlands the private international law rules of the country of the last habitual residence have to be applied.

13. Contractual obligations

Contractual obligations are governed by the Rome I Regulation (→Rome Convention and Rome I Regulation (contractual obligations)). The rules of the Rome I Regulation are applied analogously to matters that fall outside the scope of application of such regulation (art 10:154 CC).

14. Non-contractual obligations

The Netherlands is a party to the Hague Traffic Accident Convention (Hague Convention of 4 May 1971 on the law applicable to traffic accidents, 965 UNTS 415) (→Traffic accidents) and to the Hague Products Liability Convention (Hague Convention of 2 October 1973 on the law applicable to products liability, 1056 UNTS 191) (→Products liability). The law applicable to non-contractual obligations is furthermore determined by the →Rome II Regulation (non-contractual obligations) (Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II), [2007] OJ L 199/40). The rules of the Rome II Regulation are applied analogously to matters that fall outside the scope of application of such regulation (art 10:159 CC).

15. Maritime law, inland navigation law and aviation law

Title 15 of Book 10 CC provides specific choice-of-law rules regarding certain matters related to maritime law, inland navigation and airplanes.

VI. Recognition and enforcement of foreign judgments

Dutch jurisprudence has developed rules on the basis of art 431 CCP:

1. Except as provided for in the articles 985–94, p. 1neither decisions of foreign courts, nor deeds passed outside the Netherlands can be enforced within the Netherlands. Cases can be heard and determined anew by the Dutch court.

On the basis of this commanding rule, foreign judgments were initially denied all legal force.

1. Recognition

Over the years, as regards recognition, the jurisprudence has gradually developed a system in which a foreign judgment becomes eligible for recognition after the fulfilment of three minimum requirements. The assumption is that the court is free to determine in every individual case, whether, if so, to what extent, a foreign judgment should be granted authority (Supreme Court of the Netherlands (HR), 26 January 1996, NJ 1997.258 and (HR), 26 September 2014, ECLI:NL:HR:2014:2838).

A foreign judgment is eligible for recognition when:

  1. the foreign court had jurisdiction over the case;

  2. the judgment has been granted after a proper administration of justice;

  3. the content is not contrary to Dutch public policy; and

  4. the foreign judgment is not irreconcilable with a judgment given by a Dutch court in a dispute between the same parties, or a judgment of a foreign court involving the same cause of action and between the same parties, provided that the earlier judgment fulfils the conditions necessary for its recognition in the Netherlands.

    1. First, it is required that the foreign court could assume jurisdiction over the case. The standard here is whether the court (according to the Dutch view) could assume jurisdiction on the basis of internationally accepted grounds. The internal Dutch rules on competence nor the internal rules of competence of the foreign court involved play a part here.

    2. With the jurisdiction of the foreign court the applicability of its procedural laws is a fact. The non-application of Dutch procedural law does not preclude recognition. The procedure should, however, appear to be a proper process in which there is a fair and impartial handling of the case. The starting point here is what we in the Netherlands view to be the fundamental principles of procedural law. Dutch law, albeit partly inspired by art 6 ECHR (European Convention of 4 November 1950 for the Protection of Human Rights and Fundamental Freedoms, 213 UNTS 221), provides the norm. In order to be recognized, a legal proceeding should include a timely and careful summons of the defendant, sufficient preparation time for the defendant, equal treatment of the parties, the application of the principles of fair hearing etc.

    3. The foreign judgment may not be contrary to Dutch →public policy (ordre public). The public policy concept must in principle be applied in the same manner as within the conflict of laws. Where these requirements are not met, recognition is omitted. In that case, the foreign judgment lacks all legal force within the Netherlands, but may still have value in view of the evidence as part of a new procedure to be held in the Netherlands.

    4. The foreign judgment should not be irreconcilable with a previous Dutch judgment or a previous foreign judgment that needs to be recognized.

2. Enforcement

Regarding the enforcement of foreign judgments, the principle remains that these cannot be enforced without laws or treaties, even if they qualify for recognition. In order to obtain a writ of execution one should, on the basis of art 431(2) CCP, start the procedure anew before a Dutch court. In the context of this procedure, the court is free, in light of the circumstances of the case involved, to give weight (authority) to the foreign decision. If the foreign judgment meets the four requirements for recognition the court may issue a judgment in line with the foreign judgment, but is not bound to do so. If execution is requested on the basis of a treaty, one should first acquire a so-called exequatur (judicial permission). Here, arts 985–94 CCP apply.

VII. Arbitration

National and international commercial arbitration procedures (→Arbitration, international commercialp. 1) in the Netherlands are governed by arts 1020–77 CCP. These rules are based on the principle of →territoriality. The place of arbitration shall be determined by agreement of the parties, or failing such agreement, it will be determined by the arbitral tribunal (art 1037 CCP).

As to the substance of the arbitration agreement parties may choose the applicable law (→Choice of law). In the absence of a choice the material validity of the arbitration agreement is governed by the law that has the closest connection.

In some instances the law applicable to the main contract is regarded to be that most closely connected. In other cases Dutch law is applied when the Netherlands is considered to be the country of arbitration. Neither view prevails. A currently pending bill which seeks to modernize Dutch arbitration law will supplement Book 10 Dutch CC with a section (‘Titel’) on arbitration. A newly added art 166 CCP shall read as follows:

Notwithstanding Article 154, an arbitration agreement is materially valid if valid under the law which the parties have chosen, or the law of the place of arbitration or, if no choice of law is made, the law applicable to the legal relationship inherent to the arbitration agreement concerned.

The arbitral tribunal shall make its award in accordance with the rule of law. The parties may choose the applicable law. In the absence of such a choice the tribunal shall make its award in accordance with the rules of law which it considers appropriate (art 1054 CCP).

The Netherlands is a party to the main multilateral conventions on arbitration, among which New York Convention of 10 June 1958 on the recognition and enforcement of foreign arbitral awards, 330 UNTS 3 (→Arbitration, recognition of awards).

Mathijs ten Wolde

Literature

  • Luc Strikwerda, Inleiding tot het Nederlandse Internationaal Privaatrecht (Kluwer 2012) (contains references to all publications regarding Dutch Private International Law);

  • Mathijs H ten Wolde, Jan-Ger Knot, Nynke A. Baarsma, Book 10 Civil Code: On the Dutch Conflict of Laws (Hephaestus Publishers 2014).