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Applicable law - Netherlands

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TABLE OF CONTENTS

I. Sources of current law I.
I.1. Rules of national law I.1.
I.2. Current multilateral conventions I.2.
I.3. The most important bilateral conventions I.3.
II. Application of the rules of conflict II.
II.1. Official application of the rules of conflict II.1.
II.2. Referral (repeat referral, onward referral) II.2.
II.3. Change of reference point II.3.
II.4. Nonapplication of rules of conflict in exceptional cases II.4.
II.5. Establishing the content of foreign law II.5.
III. The rules of conflict III.
III.1. Contractual obligations and juristic acts III.1.
III.2. Non-contractual obligations III.2.
III.3. Personal status (name, place of residence, legal capacity) III.3.
III.4. Parentage and adoption III.4.
III.5. Marriage, registered partnership, cohabitation of unmarried partners, divorce, judicial separation, maintenance obligations III.5.
III.6. Matrimonial property laws III.6.
III.7. Laws of succession III.7.
III.8. Law of property III.8.
III.9. Insolvency III.9.

 

I. Sources of current law

I.1. Rules of national law

A few provisions of private international law are included in the General Provisions (Kingdom Legislation) Act [Wet houdende algemene bepalingen der wetgeving van het Koninkrijk] (hereinafter: AB).

There are also a number of Acts that are known as the "[legal area] (Conflict of Laws) Act". These legal areas are: divorce [Divorce (Conflict of Laws) Act, Wet conflictenrecht echtscheiding, WCE]; family names and given names [Family Names and Given Names (Conflict of Laws) Act, Wet conflictenrecht namen, WCN]; marriages [Marriages (Conflict of Laws) Act, Wet conflictenrecht huwelijk, WCH]; matrimonial property regimes [Matrimonial Property Regimes (Conflict of Laws) Act, Wet conflictenrecht huwelijksvermogensregime, WCHv]; life insurance; non-life insurance; matrimonial relations [Matrimonial Relations (Conflict of Laws) Act, Wet conflictenrecht huwelijksbetrekkingen, WCHb]; maritime law and inland navigation law [Act on the provisions of private international law with regard to maritime law and inland navigation law, Wet bepalingen van internationaal privaatrecht met betrekking tot zeerecht en binnenvaartrecht, WIPRZ]; trusts [Trusts (Conflict of Laws) Act, Wet conflictenrecht trusts, WCT]; succession [Succession (Conflict of Laws) Act, Wet conflictenrecht eropvolging, WCErf]; corporations; unlawful acts [Unlawful Act (Conflict of Laws) Act, Wet conflictenrecht onrechtmatige daad, WCOD]; parentage [Parentage (Conflict of Laws) Act, Wet conflictenrecht afstamming, WCA]; adoption [Adoption (Conflict of Laws) Act, Wet conflictenrecht adoptie, WCAd]; registered partnerships [Registered Partnership (Conflict of Laws) Act, Wet conflictenrecht geregistreerd partnerschap, WCGP]. Other subjects are not covered by legislation, but rather by means of conventions or rules derived from case law.

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I.2. Current multilateral conventions
  • Convention concerning the Recognition and Enforcement of Decisions Relating to Maintenance Obligations Towards Children, The Hague, 24 October 1956
  • Convention Concerning the Powers of Authorities and the Law Applicable in Respect of the Protection of Minors, The Hague, 5 October 1961 (hereinafter: Hague Minors Convention 1961)
  • Convention on the Conflicts of Law Relating to the Form of Testamentary Dispositions, The Hague, 5 October 1961 (hereinafter: The Hague Convention relating to the Form of Testamentary Dispositions)
  • Convention on Legitimation by Marriage, Rome, 10 September 1970
  • Convention on the Law Applicable to Traffic Accidents, The Hague, 4 May 1971 (hereinafter: the Hague Traffic Convention)
  • Convention on the Law Applicable to Maintenance Obligations, The Hague, 2 October 1973 (hereinafter: The Hague Maintenance Convention 1973)
  • Convention on the Law Applicable to Products Liability, The Hague, 2 October 1973 (hereinafter: The Hague Products Liability Convention)
  • Convention on the Law Applicable to Agency, The Hague, 14 March 1978 (hereinafter: The Hague Agency Convention)
  • Convention on Celebration and Recognition of the Validity of Marriages, The Hague, 14 March 1978
  • Convention on the Law Applicable to Matrimonial Property Regimes, The Hague, 14 March 1978 (hereinafter: The Hague Matrimonial Property Convention)
  • Convention on the Law Applicable to Contractual Obligations, Rome, 19 June 1980 (hereinafter: the Rome Convention)
  • Convention on the Law Applicable to Family Names and Given Names, Munich, 05 September 1980 (hereinafter: the Names Convention)
  • Convention on the Law Applicable to Trusts and on their Recognition, The Hague, 01 July 1985 (hereinafter: The Hague Trust Convention)
  • Convention on the Law Applicable to Succession to the Estates of Deceased Persons, The Hague, 1 August 1989 (hereinafter: The Hague Succession Law Convention; not in force, however applied in the Netherlands in accordance with the WCErf)
  • Council Regulation (EC) No 1346/2000 of 29 May 2000 on Insolvency Procedures
I.3. The most important bilateral conventions

None.

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II. Application of the rules of conflict

II.1. Official application of the rules of conflict

Pursuant to Article 25 of the Code of Civil Procedure [Wetboek van Burgerlijke Rechtsvordering], the courts must apply the rules of conflict of their own motion (therefore also in the event that parties do not invoke said rules).

II.2. Referral (repeat referral, onward referral)

If the law of state A is designated, the rules of that state apply. In the event that law A specifies that Dutch law or the law of state B applies, this stipulation must in principle be disregarded. An exception will be made in some cases.

II.3. Change of reference point

There are no general rules governing problems that arise as a result of a change of reference point. Chapter 3 will discuss the solutions for a number of separate legal areas where this is important.

II.4. Nonapplication of rules of conflict in exceptional cases

Public order

Foreign law must be disregarded if that law or its application is in contravention of international public order under private law. This is the case if (the application of) the foreign law would infringe the fundamental principles of the Dutch legal system. The rule must be applied in a restrictive manner. The sole fact that the foreign law differs from Dutch law is insufficient grounds to invoke public order, even if the Dutch law in question is of a mandatory nature. If it is not the rule itself but rather its application that may potentially breach the public order, the assessment of this may then partly depend on the extent to which the case is linked to Dutch jurisdiction. Public order may be invoked, even if the regulation in question does not contain a provision to this effect.

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Rules of precedence

The Dutch courts may apply special mandatory legal provisions (rules of precedence) regardless of the law that governs the legal relationship between parties. This does not refer to "commonplace" mandatory provisions, but rather provisions that often also have a function under public law. Both Dutch and foreign rules of precedence may be applied. Conversely, provisions under the law that has been designated as applicable may not be applicable if the public-law interest that they are intended to protect is not relevant in the specific case.

II.5. Establishing the content of foreign law

The court must officially establish the content of the foreign law. Parties are often invited to express an opinion on the foreign law and usually comply with this request. This does not alter the fact that the court itself continues to be responsible for that which it accepts as the content of the foreign law.

The court is free to choose the manner in which it obtains information. It may follow the channel prescribed in the European Convention on Information on Foreign Law (London, 7 June 1968), it may carry out its own research based on literature, it may outsource this research to an expert from the country in question or to a research institute such as the T.M.C. Asser Instituut or the International Juridical Institute [Internationaal Juridisch Instituut].

If the content of the foreign law cannot be established to a sufficient extent, a variety of solutions shall be used, such as the application of a system that is related to the law that is in fact applicable, the application of internationally accepted principles or of Dutch law.

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III. The rules of conflict

III.1. Contractual obligations and juristic acts

Agreements

In the case of most agreements, the applicable law is designated by the Rome Convention. However please see the next section for representation agreements.

In the case of some agreements that are excluded from the effects of the Rome Convention pursuant to Article 1 paragraph 2, separate Acts apply (see below). For other agreements, the rules of conflict have not been laid down by law.

Agreements that were concluded prior to the date on which the Rome Convention entered into force are governed by the rules of conflict that were applicable at that time. These broadly correspond to the Rome Convention conflict rules.

Agency

In the case of agency agreements, the provisions of the Hague Agency Convention take priority in the Netherlands over those of the Rome Convention. In the relationship between agent and principal, a choice of law is permitted; where no choice of law is made, barring exceptions, the law of the agent's place of habitual residence or the law of the principal's place of habitual residence shall apply, if the work will be mainly carried out in that country (Article 6 et seq of the Hague Agency Convention). In the relationship between the principal and his or her opposing party, barring exceptions, issues relating to agency (such as the agent's authority and the consequences of his or her actions), shall be governed by the law of the agent's place of habitual residence (Article 11(1) of the Hague Agency Convention).

Life insurance, non-life insurance

In the case of life insurance and non-life insurance, the rules of conflict included the Life Insurance (Conflict of Laws) Act [Wet conflictenrecht levensverzekering] and the Non-life Insurance (Conflict of Laws) Act [Wet conflictenrecht schadeverzekering].

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Purchase

The Vienna Sale of Goods Convention (Vienna, 11 April 1980) lays down provisions for a uniform law on the sale of goods. Article 1(1)(b) provides that, in the event that, in accordance with the rules of private international law, the law of a contracting state applies, the internal law of that state shall not apply but the convention.

Legal acts

"Legal acts" do not form a separate reference category. Legal acts that take place within the context of an agreement are generally governed by the law that governs the agreement; obligations arising from other legal acts are regarded as non-contractual obligations (for instance in the event of management of the affairs of another) or are classified under another reference category (for instance: drawing up a will, recognizing a child). A beneficial rule of conflict generally applies to the form of legal acts: according to the form, a juristic act is valid if it meets the requirements of either the place where the juristic act was effected, or the law that governs the juristic act in terms of content (Article 10 of the AB).

III.2. Non-contractual obligations

Unlawful acts

The Unlawful Acts (Conflict of Laws) Act [Wet conflictenrecht onrechtmatige daad] stipulates that an unlawful act shall be governed by the law of the state in which the act took place (Article 3 paragraph 1 of the WCOD). However there are a number of exceptions to this, particularly if the consequences of an act occur in a state other than that in which it took place, if the perpetrator and the injured party have their place of habitual residence in the same state or in the case of illegal competition. If an unlawful act is closely linked to another legal relationship between parties, the court may, contrary to the foregoing, also apply the law governing the other legal relationship to the unlawful act (Article 5 of the WCOD).

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Contrary to the foregoing, parties may also choose the applicable law themselves (Article 6 of the WCOD).

Traffic Accidents

In principle, the law of the country where the accident took place applies (Article 3 of the Hague Traffic Accidents Convention). However if the accident exclusively involves vehicles that are registered in another state, subject to additional conditions, the law of the state in which said vehicles are registered applies (Article 4, 5, 6 of the Hague Traffic Convention).

Regardless of the applicable law, the traffic and safety regulations in force in the place of the accident shall apply (Article 7 of the Hague Traffic Convention).

Products liability

In matters relating to products liability as defined in Article 1, 2 and 3 of the Hague Products Liability Convention, the law of the place where the action that caused the damage took place applies if one of the conditions referred to in Article 4 of the HPAV has been met. In other cases, the law of the place of habitual residence of the person who has suffered the damage or the law of the place of domicile of the liable party applies in principle (Article 5, 6 of the HPAV).

Management of the affairs of another

There are no statutory regulations in respect of management of the affairs of another. Except in the case of choice of law by the parties, the law of the country in which the management of the affairs of another took place applies. If that law cannot be designated, for example because the management of the affairs of another took place in more than one country, the law of the country to whose jurisdiction the management of the affairs of another has the closest links applies (Supreme Court, 23 February 1996, Netherlands Case Law 1997, 276).

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Undue payment: unjustified enrichment

The rules of conflict with regard to undue payment and unjustified enrichment are not laid down in legislation. There is also no clear case law with regard to these matters.

III.3. Personal status (name, place of residence, legal capacity)

General information

A person's status is in principle governed by his or her national law. For Dutch citizens this is stipulated in Article 6 of the AB; for non-Dutch citizens, his or her status must similarly be deduced from this provision. There are many exceptions from Article 6 of the AB in separate laws.

Name

The provisions of the Names Convention have been incorporated in the Family Names and Given Names (Conflict of Laws) Act. This Act also stipulates additions that are specific to Dutch private international law. Pursuant to Article 1 of the WCN, a person's name is governed by his or her national law, including the provisions of private international law under that law.

If a person holds both Dutch and a foreign nationality, Dutch law applies (Article 2 of the WCN). If the person holds more than one nationality, but not Dutch nationality, the law of the nationality with which the person, all circumstances taken into consideration, has the strongest ties (Article 1 paragraph 2 of the WCN) applies. Article 5b of the WCN governs the choice of surname in international cases.

Place of residence

There are no rules governing the place of residence in Dutch private international law. In practice, the following applies. If a convention or act refers to a person's place of residence, in most cases it is only important to the Dutch court whether or not this place of residence is situated in the Netherlands (for example: Articles 1 to 14 inclusive of the Code of Civil Procedure, which solely relate to the issue of whether the Dutch court has jurisdiction and not to the issue of whether the foreign court has jurisdiction). It must apply articles 1:10 to 1:15 inclusive of the Netherlands Civil Code to this question. Other conventions and acts often refer to a person's place of habitual residence. In this case it may be important whether said place of habitual residence is situated in the Netherlands or abroad (for instance in the Rome Convention, on the basis of which it must be determined whether Dutch or foreign law applies). The concept of 'place of habitual residence' is therefore not further defined on the basis of standards under Dutch law, but rather on the basis of standards that correspond with the regulation in question (autonomous interpretation of the convention' or, in the case of European Regulations, autonomous interpretation of the regulation').

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Minority and legal capacity

Whether or not a person is a minor and whether he or she is legally competent is, in accordance with Article 6 of the AB, in principle determined by the law of his or her nationality. A number of regulations contain an individual provision in order to establish up to what age this regulation shall apply.

Protection of minors and adults

The question of whether a person is a minor and/or legally competent must be distinguished from the question of which measures can be applied in order to protect the interests of a minor or an adult. With regard to minors, these measures are subject to the Hague Minors Convention 1961, which declares under Article 2 that the law of the minor's place of habitual residence shall apply. In the case of adults this is still linked to national law, but also, by analogy with Article 2 of the Hague Minors Convention 1961, to the law of the place of habitual residence.

III.4. Parentage and adoption

Parentage

A child's parents are determined by the law designated by the Parentage (Conflict of Laws) Act. This Act establishes rules of conflict in respect of the following situations:

Parentage as a result of marriage: the law of the common nationality of the wife and the husband at the time that the child is born; if the husband and wife have different nationalities, the law of the habitual place of residence of both the wife and the husband or, in the absence of this, the law of the habitual place of residence of the child (Article 1 of the WCA).

Parentage of an unmarried woman: the woman's national law, however a relationship of parentage shall in any event be established if the woman's place of habitual residence is in the Netherlands (Article 3 of the WCA).

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Parentage as a result of recognition of a child: recognition is possible if this is feasible according to the national law of the man or that of the child, or in accordance with the law of the place of habitual residence of the man or the child. Special rules apply to recognition by a married Dutch man and to the mother's consent to child (Article 4 of the WCA).

Legal determination of paternity: the law of the common nationality of the man and the mother; if the man and the mother hold different nationalities, the law of their common place of habitual residence or in the absence of this, the law of the child's place of habitual residence (Article 6 of the WCA).

Parentage as a result of legitimation: in principle, the Convention on Legitimation by Marriage (Rome, 10 December 1970) applies.

Adoption

Dutch law applies to an adoption to be declared in the Netherlands or to the revocation of said adoption (Article 3 of the WCAd). The consent of the parents or other individuals is in principle governed by the law of the child's nationality; if the child holds more than one nationality, the nationality of the country with which the child, all circumstances taken into consideration, has the closest ties is the determining factor.

III.5. Marriage, registered partnership, cohabitation of unmarried partners, divorce, judicial separation, maintenance obligations

Marriage

A marriage may be solemnised in the Netherlands if both parties meet the requirements set by their national law in respect of entering into marriage. If one of the parties holds Dutch nationality, the marriage may also be solemnised if both parties meet the requirements set by Dutch law (Article 2 under a of the WCH). No marriage may be solemnised if one of the circumstances referred to in Article 3 of the WCH occurs, in which case the marriage would be regarded as being in breach of public order. In the Netherlands, a marriage may only be solemnised by the registrar of births, deaths and marriages, or, subject to certain conditions, by a foreign diplomatic or consular agent (Article 4 of the WCH).

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Matrimonial property regime

The rule of conflict designated by the law to which the matrimonial property regime is subject depends on the date on which the marriage took place.

If the marriage was solemnised prior to 23 August 1977, in some exceptional cases the Hague Marriage Convention of 17 July 1905 applies, which refers to the national law of the man at the time of entering into marriage.

In the case of marriages that do not fall under this convention and that were solemnised prior to 1 September 1992, the judgment handed down by the Supreme Court on 10 December 1976 (Netherlands Case Law 1977, 275, Chelouche/van Leer) provides for rules of conflict.

These rules stipulate that the future spouses themselves may make a choice of law. If they do not do so, the law of the common nationality that they held at the time of entering into marriage or obtain shortly afterwards applies. In the absence of this, the law in the state of their first matrimonial domicile applies. Failing which, the law of the country with which the parties, all circumstances taken into consideration, have the closest ties applies.

The law that is applicable pursuant to these rules of conflict continues to apply, except where the parties make a choice of law at a later date.

Marriages that were solemnised on or before 1 September 1992 fall under the Hague Matrimonial Property Convention. This convention also permits a choice of law, within certain limits. If a choice of law is not made, depending on the circumstances the law of the country in which the parties establish their first place of habitual residence after the marriage, or the law of their common nationality, applies.

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A change in circumstances (nationality, place of habitual residence) may therefore result in a change in applicable law.

Personal consequences of the marriage

The consequences of the marriage that do not fall under the matrimonial property regime are governed by the law designated by the WCHb. The law of the common nationality of the spouses, the law of the country in which they both have their habitual place of residence or the law of the country with which, all circumstances taken into consideration, they have the closest ties apply respectively (Article 1(1) and (2) of the WCHb; however see the exceptions in Article 2 and 3 of the WCHb).

Divorce, judicial separation

The effect of the rules of conflict under Article 1 of the Divorce (Conflict of Laws) Act is that, in practice, Dutch law is almost always applied to divorce proceedings. Only if the spouses hold a common foreign nationality will the law of that nationality apply, however there are also many exceptions to this.

Registered partnership

Dutch law applies in the case of any individuals entering into a registered partnership in the Netherlands (Article 1 of the Registered Partnership (Conflict of Laws) Act). It also applies to the termination of a registered partnership, apart from in exceptional cases (Article 22, 23 paragraph 1 of the WCGP).

Partnership property regime

The partners may, within certain limits, designate the law that will govern their property regime (Article 6, 8 of the WCGP). If they do not do so, the law of the country where the partnership was entered into applies, including the rules of private international law in force in that country (Article 7 of the WCGP).

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Personal relationships between the partners

The personal relationships between partners are governed by the law of the country where the partnership was entered into, including the private international law in force in that country (Article 5 paragraphs 1 and 2 of the WCGP, however see the exceptions in paragraphs 3 and 4).

Termination of a registered partnership

Dutch law applies to the termination of a registered partnership or, in exceptional cases, the law of the country where the partnership was entered into (Article 22, 23 of the WCGP).

Cohabitation of unmarried partners

There are no rules of conflict in respect of cases where individuals are cohabiting but have not entered into a marriage or registered partnership.

Maintenance

Maintenance obligations are governed by the law designated pursuant to the Hague Maintenance Convention 1973. The rules of conflict under this convention are as follows: maintenance obligations are in principle governed by the law in the place of habitual residence of the maintenance recipient (Article 4 of the HAV 1973). The most important exception to this is that in the case of ex-spouses, the law that was applied to the divorce proceedings also applies in respect of maintenance (Article 8 of the HAV 1973).

III.6. Matrimonial property laws

See the discussion above under 3.5.

III.7. Laws of succession

Pursuant to Article 1 of the Succession (Conflict of Laws) Act, the Hague Succession Law Convention applies: the testator may choose the law that applies to his or her estate. If he or she does not do so, the law of his or her last place of habitual residence or of his or her nationality shall apply in the event that he or she resided there for more than five years or, if this was not the case, the law of his or her nationality (Article 3 of the Hague Succession Law Convention).

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Whether or not a will is valid in form (for instance whether or not a notarial deed is required) may be assessed in accordance with one of the legal systems summarised in Article 1 of the Hague Convention relating to the Form of Testamentary Dispositions. This includes, amongst others, the law of the place where the will was drawn up and the law of the nationality or place of residence of the testator, either at the time that the will was drawn up or at the time of the testator’s death.

III.8. Law of property

Real rights

Real rights are governed by the law of the place in which the (movable or immovable) property is located. For immovable property this is specified in Article 7 of the AB. In the case of movable property, this rule may be derived from case law.

Movable property is often relocated to another country. In this case, the establishment of real rights and the scope of these rights is assessed in accordance with the law of the place where the property is located at the time of the event in question; rights created in this way remain valid even if the property is moved. Rights obtained following this relocation are governed by the law of the new location, and take precedence over the longer-established rights.

Trusts

Trusts are subject to the law designated by the Hague Trust Convention. The settlor of the trust may choose the applicable law him or herself (Article 6 of the HTV). If he or she does not make a choice of law, the law of the country with which the trust has the closest ties shall apply. Separate rules of conflict with regard to individual topics are included in the WCT.

III.9. Insolvency

Any insolvency proceedings commenced in the Netherlands are subject to the law designated by the Insolvency Regulation.

Further information

A website is currently under construction at http://www.internationaalprivaatrecht.nl/ where the texts of legislation applicable in the Netherlands in the field of private international law will be published, including the Dutch texts of the European Regulations in this area and the Dutch translations of the aforementioned conventions.

The authentic French and English texts of the Hague conventions and the status data in relation to these conventions can be found at http://www.hcch.net/

Legal advice and information with regard to private international law and foreign law can be obtained from the T.M.C. Asser Instituut, http://www.asser.nl/, and from the International Juridical Institute, www.iji.nl English - Nederlands.

« Applicable law - General information | Netherlands - General information »

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Last update: 23-04-2009

 
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