Applicable law and sources of law
In relation to the question of which law is applicable in private international law, there are several sources of law with different rankings. There are EU (or supranational) law sources, sources of the Hague Conference on Private International Law and sources of national law.
The EU now has a large share of legislative instruments regulating the question of applicable law. Since the Treaty of Amsterdam, this legislative process has started and, twenty years later, many areas of law are covered by EU regulations and/or directives. Below, you can find a list of some of the most important instruments in the field of private international law:
- International agreements (including international labour contracts, international consumer contracts and international insurance contracts): Rome I Regulation;
- International torts (incl. international product liability, international environmental torts, international fair competition, international intellectual property rights, international union strikes): Rome II Regulation;
- International divorce (PLEASE NOTE: not applicable in the Netherlands): Rome III Regulation;
- International child support and international spousal support: Alimony Regulation (referring to the Hague Alimony Protocol 2007 for the rules on applicable law);
- International matrimonial property law: Matrimonial Property Regulation;
- International partnership property law: Partnership Regulation;
- International law of succession (and European Certificate of Succession): Succession Regulation.
The Hague Conference has also developed many rules on the applicable law, namely:
- International matrimonial property law: Hague Matrimonial Property Convention 1978 (The Matrimonial Property Regulation will increasingly replace this Convention);
- International marriages: Hague Convention on the Celebration and Recognition of the Validity of Marriages 1978 (not to be confused with the Hague Matrimonial Property Convention 1978!);
- International adoption: Hague Adoption Convention 1993;
- International child abduction: Hague Convention on Child Abduction 1980;
- International traffic accidents: Hague Traffic Accidents Convention 1971;
- International product liability: Hague Product Liability Convention 1973;
- International representation: Hague Convention on Representation 1978.
Furthermore, the United Nations Convention on Contracts for the International Sale of Goods 1980 (CISG) should be mentioned. This convention concerns international purchase agreements of movable goods between B2B parties. The CISG has a broad scope of application and can sometimes apply to a case without knowledge of the parties themselves. If this CISG is not explicitly excluded in in the purchase agreement, then this convention can apply directly and the convention will determine the substantive material contract law rules: it concerns uniform private law.
If the above-mentioned sources of law do not apply to your case, you will fall back on our national rules concerning the applicable law, in particular Book 10 of the Dutch Civil Code.
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Applicable law and general principles and doctrines
- Applicable law and the principle of the “closest law”
With regard to the applicable law in the context of private international law, the starting point is the legal system closest to the case. Often a specific ‘connecting factor’ is formulated that is deemed to take into account the most closely associated right. For example, in the case of an international tort, the place where the damage occurs determines the applicable law. In many cases this is indeed the law most closely associated with the case. In the case of an international employment contract, the country of habitual employment is in principle considered to be the law most closely connected with the case. In some cases no specific connecting factor is given and it is generally stated that the most closely connected law governs the case.
- The applicable law and the underlying method
With regard to the applicable law and the underlying method, on the European continent and in the EU, the legal relationship is the starting point for the question of conflict of law. An example: from the reference category of the ‘international agreement’, the corresponding conflict rules are searched to determine the applicable law. The founder of this method is Von Savigny. More than a century and a half ago, Von Savigny designed in his ‘System des heutigen Römischen Rechts’, a blueprint that still serves as the starting point for our conflict of law law today.
Over the years, more and more exceptions to this method have been developed in the EU. Some therefore speak of a ‘method pluralism’ in the current conflict-of-laws model. With regard to the exceptions, consider the doctrine of the rules of precedence and the public order exception. These teachings do not take the referral category as a starting point, but the potentially relevant substantive legislation. This usually concerns legislation of a (semi-)public law nature. Such legislation then involves a test of international applicability in a concrete case.
- Applicable law and indirect effect
In principle, the rules on the applicable law play an indirect role in the resolution of the conflict of law: where the applicable law is designated, the task of the conflict of laws is accomplished and it recedes. It therefore explicitly does not provide an answer to the substantive legal question or legal relationship underlying the conflict of law exercise.
In 2011, the EU Court of Justice noted that ‘it is characteristic of a conflict of law rule that it does not answer a question of substantive law itself, but only determines under which law the answer must be given’.
Incidentally, the IJI does take that extra step and also map out foreign law, if so requested.
- Applicable law and purpose
To this day, there is disagreement about the purpose of the applicable law. In any case, an important aim of applicable law is to guarantee the greatest possible legal certainty for private parties in their international legal relationships.
In the EU, the pursuit of an optimal ‘Entscheidungsharmonie’ plays an important role in this. This means that any conflict of law is settled the same regardless of which court the case is heard in. This therefore revolves around conflict-of-law (or global) justice, rather than substantive justice. In principle, the content and function of the substantive legal rule do not matter. Compare, for example, numbers 6 and 16 preamble to the Rome I Regulation; numbers 14 preamble Rome II Regulation and number 29 preamble Rome III Regulation.
At the same time, there is also room for flexibility in the current conflict of law law. With regard to the Rome ordinances, for example, think of the commonly used multiple connecting ladders within one reference category and the escape clauses in favor of a closer connection. In the Rome regulations, therefore, a relatively strict principle of legal certainty is applied on the one hand, while on the other hand this is nuanced on certain points with an appeal to the importance of flexibility.
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Lawyer Tim de Greve, partner at Stibbe.
I regularly engage the IJI in cases where PIL aspects play a role. The institute has existed for over 100 years and can therefore boast a long history and experience. There are prominent people associated with it. Not least Mr Strikwerda. They support you from the outset, immediately understand the question you are faced with and suggest possible solutions. They have the right connections at home and abroad to answer questions within a reasonable timeframe. Apart from that, it is very pleasant to work with the people of the IJI.
Lawyer Channa Samkalden, Prakken d'Oliveira
We have received advice from the IJI on several cases. One example is a case brought by a number of Nigerian farmers against Shell concerning oil pollution in Nigeria. That case is about the application of Nigerian law by the Dutch court. The IJI looked into the framework of tort law in Nigeria for us. We used that advice in the proceedings and also submitted it to the court and it showed, for instance, that our plaintiffs were also entitled to claim against Shell under Nigerian law. The IJI is extremely useful in all such cases because you receive very sound advice on the basis of which you know whether you should have a number of things investigated further. It’s very useful advice at an early stage of your procedure.
Attorney Ria van Seventer, Meesters aan de Maas Advocaten
Our law firm is based in Rotterdam, a city of more than 170 nationalities, so we regularly have to ask the IJI for advice. For example, I had to deal with the recognition of a child by an Italian man, to which Italian law had to be applied. I don’t speak Italian so I could not do that myself. Nor did I have access to the sources which the IJI has.