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The Hague Conference and Dutch Choice of Law: Some Criticism and a Suggestion

  • Th. M. de Boer


For one hundred years, the Netherlands has been the host country of the Hague Conference on Private International Law. The Dutchman Tobias Asser—attorney, Professor of law at the University of Amsterdam, diplomat, and an indefatigable proponent of international legal cooperation—was not only one of its founders, but also chairman of the first four conferences in 1893,1894,1900 and 1904. He was succeeded by B.C.J. Loder, a former member of the Dutch Hoge Raad (Supreme Court), who was chairman in 1925 and 1928. Since then, all of Asser's successors have been prominent Dutch conflicts scholars: J. Offerhaus, L.I. de Winter and J.C. Schultsz. In this light, it would be surprising if the conventions created by the Hague Conference had no impact on the development of Dutch private international law, or, conversely, if Dutch conflicts theory had not influenced the debates in the Peace Palace.



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1. I will only deal with the postwar Hague conventions. The family law conventions of 1902 and 1905, as well as the conventions on civil procedure of 1896 and 1905, are no longer relevant to Dutch private international law. The one exception is the matrimonial causes convention of 1905, denounced by the Netherlands as per 23 August 1977, but still applied by Dutch courts to matrimonial property issues whenever the conditions of Art. 10 are satisfied and the marriage has been concluded before 23 August 1977. Furthermore, the convention on civil procedure of 1905 continues to apply with regard to Iceland, as this country has not adopted the 1954 convention.

2. It is easier to list the Hague conventions not ratified by the Netherlands. Signed by the Netherlands were the following conventions: Sales of Goods (1955), Administration of Estates (1973), Trusts (1985), and Sales Contracts (1986). Neither ratified nor signed were the conventions on transfer of title (1958), sales—choice of court (1958), adoption (1965), choice of court (1965), and succession (1989).

3. This article was concluded in October 1992. By the time it appears in print, the Dutch legislature may already have endorsed ratification.

4. This figure includes accession by non-Member States. The most successful convention is the one on legalisation, with ratification or accession by 39 States.

5. This convention is in force in 31 States. It is questionable, however, if it can be considered as a true choice-of-law convention; infra, section 5.3.

6. The 1956 convention is in force in 13 States, the convention of 1973 in 10.

7. von Savigny, F.C., System des heutigen römischen Rechts, Band 8 (1849) p. 27: ‘Denn diese Gleichheit must in vollstäandiger Ausbildung dahin führen, dasz nicht blosz in jedem einzelnen Staate der Fremde gegen den Einheimischen nicht zurückgesetzt werde (worin die gleiche Behandlung der Personen besteht), sondern dasz auch die Rechtsverhältnisse, in Fällen einer Collision der Gesetze, dieselbe Beurtheilung zu erwarten haben, ohne Unterschied, ob in diesem Oder jenem Staate das Urtheil gesprochen werde.’

8. Sales of Goods (1955);Adoption (1965);Trusts (1985);Sales Contracts (1986), and Succession (1989).

9. Conflicts between National Law and Domiciliary Law (1955).

10. The convention on child maintenance (1956) has been largely superseded by the Hague Convention of 1973; for the Netherlands, it is still relevant when Belgium, Austria and Liechtenstein are involved.

11. Hof The Hague 16 June 1955, NJ 1955,615 (De Beer v. De Hondt); Rb. Breda 2 October 1962, NJ 1963,109 (Backx v. Franssen).

12. HR 6 April 1973, NJ 1973, 371.

13. Alkmaar, Rb. 22 December 1988, NIPR 1989, 112.

14. In HR 4 May 1979, NJ 1979, 547, at p. 1836 et seq., Attorney-General Franx, renowned for his scholarly advisory opinions (‘conclusies’) on conflicts issues, reviewed the proposed choice-of-law rule laid down in Art. 8. While he preferred the application of the law of the creditor's habitual residence, also for maintenance between spouses, his conclusion ends, surprisingly, with a recommendation to the Supreme Court to apply the lex divortii, mainly on the grounds that ratification proceedings were already well underway and future application of Art. 8 would probably be inevitable; ibid., p. 1843.

15. For instance: Austrian nationals, domiciled in tbe Netherlands, many and remain in the Netherlands. Under Austrian choice of law, their matrimonial property regime would be governed by Austrian law. A Dutch court would also apply national law, under Art. 4s. 2(2a), since the Netherlands has made the declaration of Art. 5. Dutch law would apply if the Netherlands had not made the declaration. In this respect, the declaration promotes decisional harmony. However, if the Austrian couple would have taken up residence in France after marriage, French law would have to be applied by the authorities in all three Member States—under Art. 4 s. 1, none of the conditions of the second section having been fulfilled — but the authorities in Austria would still apply Austrian law. Decisional harmony is an elusive quality.

16. Even Dutch conflicts scholars who were in favor of ratification must have feared the complexity of the convention's choice-of-law rules. They argued mat the convention would be very simple to apply if (future) spouses were persuaded to choose the applicable law themselves: in that case the intricate provisions of Art. 4 et seq. could be avoided altogether. In my view, this is a most compelling argument against ratification: rules that are considered so impracticable that they are best avoided by a parties' choice should not be adopted at all.

17. For instance, if they started with separate property, let us say under the law of their common nationality, and if they have subsequently lived for ten years in the Netherlands, where community property is the statutory matrimonial property regime, a Dutch notary will be hard put to solve the resulting choice-of-law conundrum, since the Dutch regime implies that each spouse is entitled to half of the property they possess together, including property they possessed before marriage. Even if this can be solved by giving the community property regime retroactive effect, the notary or the court will have to ask the parties for a complete curriculum vitae, listing any change in nationality or habitual residence that occurred during the marriage.

18. While the decisions of the Dutch Supreme Court in this area have been rather confusing, it would appear that a workable solution has been reached since the Sabah decision: HR 7 April 1989, NJ 1990, 347; NILR 1991, p. 398 (annot. De Boer). In that decision, Dutch scholars agree, the Supreme Court confirmed that matrimonial property issues are governed by (1) the law chosen by the parties at the time of marriage, (2) in the absence of such a choice: the law of their common nationality at the time of marriage, (3) in the absence of a common nationality at that time: the law of their first habitual residence, or (4) if it is impossible to ascertain where they established their habitual residence at the time of, or shortly after, their marriage: the law with which they are most closely connected. Under the ‘Sabah exception’, the law that would otherwise apply may be displaced if the spouses had good reason to assume that their matrimonial property regime would be governed by a different law.

19. Cf., van Loon, J.H.A., ‘The Increasing Significance of International Co-operation for the Unification of Private International Law’, in Forty Years On, The Evolution of Postwar Private International Law in Europe (1990) pp. 101—122, p. 113 et seq.

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The Hague Conference and Dutch Choice of Law: Some Criticism and a Suggestion

  • Th. M. de Boer


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