The need to observe procedural rules by the Community institutions has been underlined by the Court of Justice of the European Communities. In my contribution to this Liber Amicorum I would like therefore to focus attention on the attitude adopted by the Court in setting criteria for procedural requirements.

Reviewing the legality of acts of the Council when the action is brought by a Member State is a noteworthy and curious phenomenon, since the Council consists of representatives of the Member States. Therefore I have focussed my attention especially on the Council and the cases concerning successful actions of Member States against irregularities in the decision-making by the Council.

‘S'il est un problème irritant, c'est Men celui des voies de recours en matière d' arbitrage’. These are the opening words of R. Perrot's magnificent report from 1980 on ‘Les voies de recours en mati`re d'arbitrage’. He continues with the observation that the expansion, diversity and fragmentation of the ever-increasing number of means of recourse lead to post-arbitral disputes which negate all of the positive aspects of arbitration. This all works to the advantage of the losing party who can use this maze of recourses to vent his dissatisfaction. These remarks refer to the French legislation on arbitration which was in force at that time. Moreover, a similarly pessimistic view can be found in a comparative study by P. Schlosser on the setting aside of arbitral awards published in the same year.

(1) According to ancient common law precedents, fair hearings are required by natural justice. In 1723, a somewhat difficult scholar, Dr. Bentley, who had been deprived of his degrees by the University of Cambridge because of grave misconduct, was reinstated by the King's Bench, on the ground that he had not been asked to make his defence as required by the laws of God and men. More than two centuries later, the House of Lords held that the dismissal of Brighton's Chief Constable was void for similar reasons: the town's Watch Committee had given him no notice of any charge against him and no opportunity to make his defence. Lord Reid, giving the leading speech, said that the Brighton authorities had been exercising a power affecting a person's rights, and that they were therefore ‘subject to the principles of natural justice’—whether they were acting in a judicial or in an administrative capacity.

(1.1) Cooperation and coordination within the legal order of the Community between the European Court of Justice and the national courts and tribunals are primarily based upon Article 177 of the Treaty of Rome. This provides for the possibility of a preliminary ruling by which a national court may request the European Court to give a ruling upon the interpretation of the Treaty itself or upon the validity and interpretation of acts of the institutions of the Community, such as the Council or the Commission.

The past two years—1990 and 1991—have possibly been the most important in peacetime history in Europe for several centuries. The breakdown of communism in Eastern Europe and the U.S.S.R., the removal of the iron curtain, the fall of the Berlin wall and the reunion of Germany, the end of the Warsaw Pact, the increased integration in Western Europe and the disintegration of the U.S.S.R. and Yugoslavia—each one of these events is important enough to be a political landmark. Together they constitute a period of outstanding importance and, probably, a platform for equally significant changes to come.

‘Error is the mark of the higher organisms’. This statement struck me again when, composing myself to the honourable and pleasant task of preparing a contribution to the Liber Amicorum for my learned friend Bert Voskuil, I reconsidered ‘the Case of Zaire’, a case which raised the question whether and to what extent a judicial error was committed by the Dutch court that declared a foreign State bankrupt. If the judgment has to be considered an error of law, that court certainly qualified as a ‘higher organism’.

Let us first look at the facts of the case.

The above quotation from Batiffol appears in the part of his book where the xenophobic approach to the legal position of a foreigner in ancient Greece is debated. Although centuries have passed since those times, that attitude is still deeply ingrained in human nature. The field of law had not escaped it either. In spite of the fact that no judge would be willing to admit it, it still influences many of them, at least unconsciously, albeit that they are honest, decent and learned persons. Only those of them who have been for a considerable time immersed in problems of the application of foreign law have been able, to a greater or lesser degree, to eliminate it. In this short essay I shall discuss briefly, without in any way attempting to be exhaustive, some of the aspects of the problem. The idea is simply to draw attention to an issue which is usually avoided in legal writing.

One of the great achievements of the Asser Instituut, under Voskuil's inspiration, has been the study and documentation of international arbitration. It may be appropriate therefore to present here a chapter on one aspect of arbitration on which documentation is scarce and about which little has been written.

The question we shall consider is the familiar one of applicable law: what is the law governing foreign investments made under an investment treaty? By what law should arbitrators be guided when they deal with international investment disputes? Some of the investment treaties concluded to promote and protect international investments answer these questions, which of course are essentially questions of private international law. The treaty rules on applicable law often refer arbitrators to rules of international law as well as to the national law of the host state (including its private international law). Thus, we are concerned with mat grey zone between public and private international law where it is often difficult to find one's way or to ascertain what rules should be applied: those of municipal law (of which private international law forms part) or those of (public) international law. It is widely held by international lawyers that rules of public international law take precedence over national law and therefore over private international law, whenever a conflict arises between them. This question, however, is controversial; U.S. doctrine, for instance, holds that national (U.S.) laws take precedence over international law if they are expressed in sufficiently clear terms.

In several European countries there is a system of rules governing the question of the international jurisdiction of the courts in civil law matters. Such rules are laid down either as a part of the law of civil procedure (such as in the Polish Law of Civil Procedure of 1964) or are prescribed within the framework of laws on private international law; examples of the latter system are the Czechoslovak Act on Private International Law and International Procedural Law of 1965, the Hungarian Act on Private International Law of 1979, the Yugoslav Act on Private International Law of 1982 and the Swiss Act on Private International Law of 1987. In other countries, e.g. in Germany, The Netherlands, Austria and France in regard to compétence ordinaire, the rules on internal jurisdiction are applied, mutatis mutandis, to establish international jurisdiction. However, conventional law on international jurisdiction takes precedence over conflicting provisions of national law.

The new Dutch Arbitration Act (Articles 1020–1076, Book IV of the Code of Civil Procedure) entered into force on 1 December 1986. After five years of experience with the new Act, the time has come to draw up a provisional account of its reception by the courts. More than 50 court decisions have been reported and annotated by me in the Tijdschrift voor Arbitrage (TvA) a bi-monthly arbitration periodical (in Dutch). It is on the basis of this material that this contribution has been written. Of course, not all of these decisions will be referred to; a choice had to be made as will be seen from the headings which follow.