May 3rd, 2012

Continental European Legislative and Judicial Trends: Book 10 of the Dutch Civil Code - Consolidation and Codification of Dutch Private International Law

Posted at 1:00 AM ET

David Lewin, Managing Director
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Background

Since 1980, a large number of issues from Dutch Private International Law (PIL) have been regulated by statute. Legislation established Book 10 of the Dutch Civil Code. It consists of a compilation of all relevant statutes into the “PIL Act” and includes an introductory title containing general provisions. The compilation project included a careful examination of existing provisions in light of the proposed general provisions and of case law since the individual statutes had come into force. No significant amendments were found necessary except in the title of divorce. However, the conflict-of-law acts were not consolidated in Book 10 concerning three subjects - life insurance, general insurance and unlawful acts - because the Rome I and Rome II regulations (EU regulations governing contractual and noncontractual obligations) cover these.

Book 10 of the Dutch Civil Code became effective on January 1, 2012. It provides a classification, consolidation and codification of previous PIL legislation that came from three different legal sources: conventions, European regulations and statutes. The book contains both statutory provisions of PIL and references to conventions, such as several Hague Conventions, and to European regulations such as Rome I and Rome II. It does not cover all issues of PIL, and further pieces of legislation can be inserted. The codification focuses on applicable law and does not contain procedural PIL rules on areas such as competency or recognition. Book 10 is mainly concerned with choice-of-law rules and contains a number of unilateral rules such as those that designate the law of the forum (Dutch law) as applicable and that outline its reach. The codification does not contain unilateral rules that designate a specific foreign law as applicable.

The main purpose of this codification is to make PIL rules more accessible and transparent by facilitating access to them. Additionally, the codification helps legal practitioners further understand Dutch PIL and illustrates the connections with non-Dutch sources of law. This codification is not intended as a revision of Dutch PIL, but more as a consolidation and organization of the previous labyrinth of rules and regimes of Private International Law (internationaal privaatrecht, IPR). Modifications have only been made on a few points.(1)

What’s New

One new element in the first title of Book 10 is a section with a few general provisions that precedes the rules governing choice of law. The first title sets out the main principles underlying the codification and reflects the general approach taken in the Netherlands when there is a conflict of laws. In this first title, Article 9 introduces a new exception for use in every area of conflict of laws. This provision aims to adjust the result of an application of a Dutch conflict-of-law rule. This may occur when the Dutch rule is found to be unacceptable because the parties involved assumed that a foreign conflict rule that referred the case to a different law was, in fact, applicable. It is remarkable that this “fait accompli” exception is codified as a universal exception to all conflict rules because it has never been treated this way in case law or literature.(2)

Title 14 of Book 10 of the Dutch Civil Code deals with non-contractual obligations. Article 159 of Book 10 declares the Rome II regulation as applicable to non-contractual obligations that fall outside the scope of the Rome II regulation and are considered a tort/delict. This means that, in principle, the Rome II regulation is applicable to all subjects that are excluded from the scope of Rome II through Article 1(2). However, the legislator’s intent is not to make Rome II applicable to all fields of law that fall outside of the substantive scope of Rome II. Article 159 also makes Rome II applicable to non-contractual obligations arising out of tort/delict as a result of acta iure imperii.

Consequently, according to Article 4 Rome II, the liability of the Dutch government (or government body) would fall under the law of the lex loci damni instead of the lex loci delicti. To prevent a situation in which a Dutch government body in the unlawful exercise of Dutch public authority is confronted with the applicability of a foreign law, Article 159 declares Dutch law applicable to obligations resulting from the exercise of public authority.

The last title of Book 10, Title 15, contains some provisions on conflict of laws relating to maritime, inland water and air transport. In this title, the new Article 164 deals with collisions on the high seas. In Rome II, which also deals with collisions, a reference is made in Article 4 to the law of the country in which the damage occurs (lex loci damni), but this is not helpful because the high seas do not belong to any country. If no applicable law can be determined according to Article 4 Rome II, Article 164 of Book 10 determines the law of lex fori as the applicable law.

Criticism

Much has been written about the introduction of the new Book 10 in the Dutch Civil Code. A few points of criticism are specifically highlighted here:

  • The new Book 10 of the Dutch Civil Code comprises very little innovation in the field of Dutch PIL. The rules it contains do not waive any international instruments in force. There is a need to focus attention on the growing body of European legislation, and users should not blindly trust Book 10 because its references to supranational legislation can be incomplete or quickly outdated.
  • With the conflict-of-law rules, the method of consolidation chosen by the legislator may give a practitioner a false sense of security. Book 10 does not completely address the applicable international and community level instruments and the national PIL legislation. To remedy the lack of complete information, each title or section in Book 10 should begin with an overview of all the potentially relevant international, European or national legislation on the topic discussed.
  • The Dutch Book 10 does not include general provisions on interpretation and/or characterization, as do some foreign PIL acts. Their inclusion would have been helpful because different methods of interpretation and characterization need to be used for different provisions of this book. The choice of which method to use is not
    obvious.

Codification of Dutch PIL: To Be Continued

The new Book 10, which has been criticized by legal authors, does not cover all PIL topics, nor does it contain many innovations. However, it does update and categorize Dutch PIL, which will help in managing PIL and facilitating the integration of new international and European instruments in the future. With the introduction of the new Book 10, it will be easier for legal practitioners to find their way in the IPR labyrinth.

The PIL is still not complete with the consolidation in Book 10. In fact, no part of the law is ever finished, and Book 10 will be amended at some point in the future. At best, this is an intermediary step in the ongoing process of codifying PIL at the international, European and national levels.

Notes:

1 This article is limited to the changes relevant for the casualty insurance industry.
2 M.H. ten Wolde, “De mysteries van het fait accompli en boek 10 BW”, NIPR 2010 aflevering 3, p. 430.

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