Book 10 of the Dutch Civil Code

The consolidation and codification of Dutch Private International Law
After 1980 a large number of issues from Dutch Private International Law (PIL) were regulated by statute. The Bill that established Book 10 of the Dutch Civil Code compiled all these statutes into one PIL Act and added an introductory title containing general provisions. The consolidation project included a careful examination of existing provisions in light of the proposed general provisions and of case law during the period 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 Rome I and Rome II Regulations cover these.

The 10th book of the Dutch Civil Code came into effect on January 1st 2012. The new book provides a classification, consolidation and codification of previous PIL legislation that came from three different legal sources: Conventions, European Regulations and Statutes. Book 10 of the Dutch Civil Code contains both statutory provisions of PIL and references to Conventions (e.g. several Hague Conventions) and European Regulations (e.g. Rome I and Rome II). Book 10 does not cover all issues of PIL but further pieces of legislation can be inserted. The codification focuses on applicable law and does not contain procedural PIL rules on, for example, 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) to be applicable and that outline its reach. The codification does not contain unilateral rules that designate a specific foreign law 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 it shows them the way to non-Dutch sources of law. This codification is not intended as a revision of Dutch PIL, but more as a consolidation and an organisation of the previous labyrinth of rules and regimes of Private International Law or internationaal privaatrecht (abbreviated to IPR) in Dutch. Modifications have only been made on a few points.[1]

What’s new?
One new element introduced is that the rules governing choice of law are preceded by a few general provisions in the first title of Book 10. The first title sets out the main principles underlying the codification and reflects the general approach taken in the Netherlands if there is a conflict of laws. In this first title, article 9 introduces a new fait accompli exception to be used in every area of conflict of laws. This provision aims to adjust the result of applying a Dutch conflict of law rule in the event that it is 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 the fait accompli exception is codified as a universal exception to all conflict rules because it has never been regarded as such 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 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 the subjects that are excluded from the scope of Rome II through article 1 (2). It is however not the legislator’s intention to make Rome II applicable to all the fields of law that fall out 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 furthermore 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 article 164 is new and deals with collisions on the high seas. Although Rome II deals with collisions in the first place, article 4 (1) Rome II, in which reference is made to the law of the country in which the damage occurs (lex loci damni), will of course not be of any help 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 the lex fori as the applicable law.                                                           

Criticism
A lot has been written with regard to the introduction of the new Book in the Dutch Civil Code. A few points of criticism are highlighted below.

The new 10th Book of the Dutch Civil Code comprises very little innovation in the field of Dutch PIL. Besides that, the rules contained in the new Book 10 do not waive any international instruments in force. The user always has to be attentive to the growing body of European legislation and cannot blindly trust Book 10 because references made to supranational legislation can be incomplete or quickly outdated.

The method of consolidation, mainly conflict-of-law rules, chosen by the legislator can give the practitioner a false sense of security. With regard to both the applicable international and community level instruments and the national PIL legislation, Book 10 is not complete. To prevent overlooking this, every title or section in Book 10 dealing with a certain subject should begin with an overview of all the potentially relevant international, European or national legislation.

Unlike some foreign PIL Acts, the Dutch Book 10 does not include  general provisions on interpretation and/or characterisation. This would have been useful because different methods of interpretation and characterisation have to be used for different provisions of this book. It is not obvious to practitioners which method should be used.

Codification of Dutch PIL: to be continued

Although the new Book 10 does not cover all PIL topics, does not entail many innovations and received some criticism by legal authors, it is however, an update and categorisation of Dutch PIL. This benefits the manageability of PIL and in the future will facilitate the integration of new international and European instruments. With the introduction of the new Book 10 it will be easier for legal practitioners to find their way in the IPR labyrinth. But with the consolidation in Book 10 the PIL is not finished, as no part of the law is ever finished. At some point in the future Book 10 will be amended. At best, this is an intermediary step in the ongoing process of codification of PIL at an international, European and national level.


 

[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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