Conflicts of laws and sources of law
On the question of which law is applicable in private international law, there are different sources of law that have different precedence. These include sources of law at the EU (or supranational) level, sources from the Hague Conference on Private International Law and sources from national law.
The EU provides a large share of legislative instruments regulating the question of conflict of laws. This legislative process has been developing since the Treaty of Amsterdam in 2000 and, 20 years later, many areas of law are now 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 (incl. international labour contracts, international consumer contracts and international insurance contracts): Rome I regulation;
- International torts (incl. international product liability, international environmental crimes, international fair competition, international intellectual property rights, international strikes): Rome II regulation;
- International divorce (NOTE: not applicable in the Netherlands): Rome III regulation;
- International child support and international spousal support: Maintenance Regulation (referring to the Hague Maintenance Protocol 2007 for rules on applicable law);
- International matrimonial property law: Matrimonial Property Regulation;
- International partnership property law: the Partnership Regulation;
- International law of succession (and European Certificate of Succession): Succession Regulation
The Hague Conference has also developed many rules on conflict of laws, namely:
- International Matrimonial Property Law: Hague Matrimonial Property Convention 1978 (with time, the Matrimonial Property Regulation will increasingly replace the Convention);
- International marriages: Hague Celebration and Recognition of the Validity of Marriages Convention 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 Agency 1978.
Of course, a mention of the United Nations Convention on Contracts for the International Sale of Goods (Vienna, 1980) (CISG) should also not be missed. This treaty covers international sales contracts of movable goods between B2B parties. The CISG has a broad scope of application and may sometimes apply to a case without the parties having taken it into account: after all, if the CISG is not expressly excluded in the sales contract, it may be directly applicable and the CISG determines the substantive contract law rules: it thus concerns uniform private law.
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Lawyer Tim de Greve, partner at Stibbe.
I regularly consult the IJI in cases involving private international law aspects. The institute has been around for over 100 years, so it boasts a long history and experience. There are eminent people associated with it. Not the least Mr Strikwerda. The IJI legal counsels think along with you, immediately understand the question you are facing and come up with solutions. They have the right connections at home and abroad to answer questions within a reasonable time. Apart from that, it is very pleasant working with the people of the IJI.
Lawyer mr Channa Samkalden, Prakken d'Oliveira
We have consulted the IJI in several cases. One example is a case brought by some Nigerian farmers against Shell about oil pollution in Nigeria. That case involved the application of Nigerian law by the Dutch courts. And the IJI figured out the framework of tort law in Nigeria for that purpose for us. We used that advice in the proceedings and also submitted it to the court and it showed, for example, that our claimants were also entitled to claim against Shell under Nigerian law. Actually in all those kinds of cases, the IJI is extremely useful because you get a very solid advice on the basis of which you know: do we want to have a number of things investigated further, can that be done by the IJI or should we turn to someone else? But at least you can use this information at an early stage of your proceedings.
Lawyer mr. Ria van Seventer, Meesters aan de Maas Advocaten
Our law firm is based in Rotterdam, a city with more than 170 nationalities, so we regularly have to seek private international law advice from the IJI. For example, I have had to deal with the recognition of a child by an Italian, to which Italian law has to be applied. I don’t speak Italian so I can’t do that myself. I also don’t have access to the sources and the IJI does.