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Foreign Law in Summary Proceedings (Kort Geding)

Published online by Cambridge University Press:  21 May 2009

H.U. Jessurun d'Oliveira
H.U. Jessurun d'Oliveira
Affiliation:
Professor of Law, University of Amsterdam/European University Institute (Florence).
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Extract

The procedural treatment of foreign law in civil litigation, intimately connected as the question is with the status of domestic conflict rules, remains a fascinating topic. It is not only the case that national legal orders vary widely on the applicability and application of foreign law in civil procedure, but in recent years the answers given within several of those legal orders are changing as well. One of the more interesting aspects of the issue is its position on the crossroads between substance and procedure, between justice and expediency, between legal theory and day-to-day court work, and—last but not least—it is situated at a place where different legal orders meet and mingle.

Type
Research Article
Information
Netherlands International Law Review , Volume 39 , Special Issue S1: Law and Reality , October 1992 , pp. 119 - 135
Copyright
Copyright © T.M.C. Asser Press 1991

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References

1. HR 4 June 1915, NJ 1915 no. 865 and HR 8 April 1927, NJ 1927 no. 1110.

2. Cf. d'Oliveira, H.U. Jessurun, De antikiesregel, een paar aspekten van de behandeling van buitenlands recht in het burgerlijk procesGoogle Scholar [The ‘non-choice’ rule, several aspects of the treatment of foreign law in civil proceedings] (1971) p. 32 et seq.; de Boer, Th.M, ‘Buitenlands recht onder de loupe’Google Scholar [Foreign law as seen through a magnifying glass], in Bervoets, Th.M. et al. , Hoe vreemd is buitenlands recht? [How foreign is foreign law?], Symposium 11 May 1979 (1979) pp. 9–37, p. 15.Google Scholar

3. Cf. Jansen, F.M.J., in van den Dungen, G.J.M. et al. , Burgerlijke RechtsvorderingGoogle Scholar [Civil Proceedings], loose-leaf edn., note 10 to Art 48 CCP.

4. Cf. HR 15 April 1983, NJ 1983 no. 698, with a note by J.C. Schultsz. This is not an exception to the general rule of application ex officio of conflict rules, but the rule is observed in a specific type of cases. See however Jansen, , op. cit. n. 3Google Scholar, who construes it as an exception.

5. Sometimes one may witness the Flying Dutchman sailing along as if nothing happened. In a case in which the plaintiff had asserted that the defendant's behaviour was tortious according to the law of the Netherlands and according to foreign law, at least the law of all European countries, the President of the District Court of The Hague, still imbued with 19th century notions, remarked: ‘As the contents of foreign law are to be considered as a question of fact we can assume that the proposition advanced by (plaintiff) is correct’: it was not contradicted by or denied by the defendant President of the District Court The Hague 28 December 1990, NIPR 1991 no. 166. On the other hand, the Hoge Road, in a recent and remarkable decision, accepted without any limitation mat the Dutch courts are free to ask for expert advice even concerning purely municipal legal questions: HR 2 February 1990, NJ 1991 no. 1, with a note by J.M.B. Vranken with comparative details. Ius curia ignovit!

6. Cf. P. Vlas, in van den Dungen, G.J.M. et al. , Burgerlijke RechtsvorderingGoogle Scholar [Civil Proceedings], loose-leaf eda, Verdragen *[Treaties], Chap. I, and the literature mentioned there. The information about the foreign law which the judicial authority receives shall not bind him, Art. 8 of this Convention tells us, and this is one of the few written rules on the status of these certificate de coutume in Dutch law.

7. Cf. d'Oliveira, , op. cit n. 2, pp. 124–154.Google Scholar

8. Cf. d'Oliveira, , op. cit. n. 2, p. 117 et seq.Google Scholar

9. See, e.g., HR 2 April 1976, NJ 1977 no. 124; HR 28 March 1980, NJ 1981 no. 130; HR 3 December 1982, NJ 1983 no. 354; HR 31 May 1985, NJ 1985 no. 717; HR 13 March 1987, NJ 1987 no. 679; HR 10 November 1989, NJ 1990 no. 112. Cf. the literature cited by the Advocate-General Strikwerda in his conclusion (para. 3.9) ad HR 17 March 1989, NJ 1990 no. 427. In this last case the Hoge Road rejected the complaint about lack of reasoning after incisive control of English law and after distinguishing the case in hand from an English case decided by the House of Lords, of which it obviously has taken (judicial?) notice.

10. See for a description of mis development with comparative remarks d'Oliveira, H.U. Jessurun, ‘Verdraaiing van vreemd recht’ [Distortion of foreign law]Google Scholar, in Bervoets, et al. , op. cit. n. 2, pp. 39–69.Google Scholar

11. Cf. for a somewhat more elaborate restatement d'Oliveira, , ‘Foreign Law and International Legal Cooperation’Google Scholar, in T.M.C. Asser Instituut, Hague-Zagreb Essays 2 (1978), pp. 216–240.Google Scholar

12. The last sentence repeats what the Council of Europe Convention states about information on foreign law received through the channels of this Convention. A fortiori, one would say, the judge remains free in the appreciation of information given by or through the parties.

13. The preliminary Draft Bill mentioned in the text has lost much of its interest as it has in large part been replaced recently (March 1992) by ‘preliminary draft of a New Book Ten of the Civil Code containing provisions concerning private international law. As their preliminary Draft is seen as a part of the Civil Code, no provisions on procedure are to be found here.

14. See Bruinsma, F., ‘Het kort geding in Amsterdam’ [Summary proceedings in Amsterdam], NJB (1990) pp. 337–341Google Scholar; Keyzer, E.J.A. and Tak Sen, K.G. Tjoen, ‘Toch een onstuitbare opmars van het (civiele) kort geding?’ [An unstoppable advance of (civil) summary proceedings after all?], NJB (1989) pp. 1446–1449.Google Scholar

15. The first to be mentioned here is Bervoets, Th.M, ‘Buitenlands recht in kort geding’Google Scholar [Foreign law in summary proceedings], in Bervoets, et al. , op. cit. n. 2, pp. 121–143.Google Scholar See for an impression d'Oliveira, , loc. cit n 11, p. 230.Google Scholar

16. Caroli, J.P.A.N. and Meijers, E.M., Het kort geding voor den President der Arrondissements-Rechtbank (Reféré) [Summary proceedings before the President of the District Court (Reféré)], vol. I (1906) and vol. II (1915).Google Scholar

17. Cf. Bervoets, , loc. cit. a 15, p. 123.Google Scholar

18. This occurs sometimes even in international cases. A case in point is President of the District Court Middelburg 16 November 1990, NTPR 1991 no. 234, where the President consented to the request by both parties to give an oral decision immediately after the hearing — ‘zeer voorlopig oordelende’ (giving a very provisional judgment); this ‘interim kort geding’ was later affirmed by the same President three weeks later.

19. See Jansen, , op. cit n. 3Google Scholar, notes 11, 13 and 14 to Arts. 289–290 CCP.

20. Bervoets, , loc. cit n. 15, p. 143Google Scholar reserves the referral to the ordinary procedure in international cases for the situation mat the application of foreign law turns out to be problematic.

21. The case mentioned earlier (n. 9) which ended with HR 17 March 1989, NJ 1990 no. 427, although technically not a kort geding but a foreign arrest-case, lasted nearly ten years from the attachment in the port of Rotterdam on 5 December 1979. The (international) case leading to the decision of 10 November 1989, NJ 1990 no. 112 lasted two and a half years, starting as it did on 21 May 1987. This last period is not at all abnormal in kort geding proceedings.

22. Cf. e.g., the text of the case and comments in Environmental Liability Law Quarterly (1989) pp. 90–95.Google Scholar

23. Cf. d'Oliveira, , op. cit n. 2, p. 183 et seq.Google Scholar

24. HR 24 November 1989, RvdW 1989 no. 267; NJPR 1991 no. 117.

25. The question was decided in a different way by some lower courts; especially the Middelburg District Court denied its power to issue orders which had to be followed outside the Netherlands. See, e.g., President of the District Court Middelburg 4 March 1988, KG 1988 no. 168; NJPR 1988 no. 408, who stresses the character of the kort geding injunction as a practical measure to restore or maintain order, and denies its character as a decision in law.

26. HR 10 November 1989, NJ 1990 no. 112; NJPR 1990 no. 199.

27. See Court of Appeal Amsterdam 24 December 1987, Migrantenrecht (1988) p. 105Google Scholar, with a note by L. Jordens-Cotran; NIPR 1988 no. 309.

28. And he added about the religious significance of a repudiation according to Muslim law: ‘Restraint is, I think, prescribed if the judge is asked to interfere in these religious matters and is invited to give an injunction to proceed to a talaq and men to exercise compulsion in a matter which (also) touches the religious conviction of the persons in question. (…) If one can accept mat such a court order can be granted in kort geding proceedings, then, I would think, at least mere should be stiff requirements concerning the grounds given for the judgment; the summary grounds on which decisions in kort geding proceedings rest, and are allowed to rest, should not suffice here.’

29. HR 20 April 1990, RvdW 1990 no. 84; TVVS (1990) p. 203, with a note by P. Vlas NIPR 1990 no. 449. This Common Court of Justice was established as of 1 January 1986 as a consequence of the island of Aruba acquiring a ‘status aparte’ within the Kingdom of the Netherlands, more or less on the same footing as the other islands of the Dutch Antilles together.

30. Is the intimation that the court below should have discarded the Moroccan law as contrary to Dutch ordre public!

31. Loc.cit.n. 15, p. 142; see also for the non-choice aspects, d'Oliveira, , op. cit.n. 2, p. 233Google Scholar et seq., and for the kort geding aspect idem, loc. cit n. 11, p. 230.

32. HR 22 June 1973, NJ 1975 no. 74, with a note by J.C. Schultsz.

33. See President of the District Court Zutphen 18 December 1987, KG 1988 no. 42; NIPR 1988 no. 305. The President applied, by way of analogy, the 1961 Hague Convention on the protection of minors, leading to recognition of an interim court order of the Supreme Court of Ontario in which the father had been appointed guardian of the child.

34. President of the District Court Arnhem 15 August 1985, BIE (1988) pp. 40–41; NIPR 1988 no. 328. It appears that plaintiff furnished the President with literature concerning German law.

35. President of the District Court Rotterdam 15 May 1987, S & S 1987 no. 128; NIPR 1988 no. 340.

36. Court of Appeal's-Hertogenbosch 4 October 1989, NIPR 1990 no. 211.

37. Court of Appeal Amsterdam 21 September 1989, NIPR 1990 no. 274 (one of the Justices in the Court of Appeal had worked as a research assistant of the Centre for foreign law and private international law of the University of Amsterdam).

38. Court of Appeal 's-Hertogenbosch 14 August 1990, KG 1990 no. 327; NIPR 1990 no. 502. In view of the system of Art. 5 of the Rome Convention mis judgment is rather ambiguous. The same decision has been given in a parallel case: Court of Appeal 's-Hertogenbosch 9 October 1990, NIPR 1991 no. 144.

39. Court of Appeal 's-Hertogenbosch 20 November 1990, NIPR 1991 no. 145.

40. President of the District Court Amsterdam 23 November 1990, KG 1990 no. 392; NIPR 1991 no. 223.

41. See also Bervoets, , loc. cit. n. 15, p. 138.Google Scholar