Nederlands Internationaal Privaatrecht (NIPR): Issue 4 of 2024

The fourth issue of 2024 of the Dutch journal of private international law, Nederlands Internationaal Privaatrecht, was published a few weeks ago. It comes with the following contributions

An editorial is written by Mathijs ten Wolde (Professor of private international law and international transport law at the Groningen University) who provides an overview of the academic memorial that took place in September 2024 in Hamburg in honour of Professor Peter Mankowski as well as of the memorial book (Gedächtnisschrift für Peter Mankowski) that contains 81 essays by prominent colleagues on topics of private international law, insolvency law and civil procedural law, arbitration law, uniform law (in particular the UN Convention on Contracts for the International Sale of Goods) as well as comparative law and legal culture research.

The first contribution in the issue is by Aukje Mens and is titled De kwalificatie en de rechtsgevolgen van de erkenning van een kafala op grond van het Nederlandse internationaal privaatrecht (The qualification and legal consequences of the recognition of a kafala under Dutch private international law). It is based on the doctoral research of the author who obtained her doctorate on 16 September 2024 at the University of Groningen with a dissertation on international adoption.

A kafala is a child protection measure under Islamic law, which entails an obligation to care for, protect, raise, and support a child, but without any implications for lineage or inheritance rights. The main conclusion is that a kafala generally constitutes both a guardianship and a maintenance decision. Consequently, the recognition of a foreign kafala in the Netherlands essentially entails the recognition of both the guardian’s (kafil) authority over the child (makful) and the recognition of the guardian’s maintenance obligation towards the child.

The second contribution is by Birgit van Houtert under the title The Anti-SLAPP Directive in the context of EU and Dutch private international law: improvements and (remaining) challenges to protect SLAPP targets. The text of this contribution is available in open access and can be consulted here.

The author argues that while the scope of the Anti-SLAPP Directive is broad, the criteria of ‘manifestly unfounded claims’ and the ‘main purpose of deterrence of public participation’ may challenge the protection of SLAPP targets. More on Birgit van Houtert views on the matter can be read on this blog here.

The third contribution is by Veerle Van Den Eeckhout under the title Rechtspraak van het Hof van Justitie van de Europese Unie inzake internationaal privaatrecht anno 2024. Enkele beschouwingen over de aanwezigheid, de relevantie en de positie van internationaal privaatrecht in de rechtspraak van het Hof. Een proces van inpassing? Over de gangmakersfunctie van het ipr (The case law of the Court of Justice of the European Union on private international law in 2024. Some reflections on the presence, relevance and position of private international law in the case law of the Court. A process of integration? On the initiating function of PIL).

With the increase in the number of European regulations on Private International Law, increasing attention has been paid by scholars to issues of consistency between different private international law regimes. The foregoing also includes attention to the position of the Court of Justice of the European Union with regard to (un)harmonised interpretation when answering preliminary questions on the interpretation of those regimes.

This contribution examines a number of current developments concerning the ‘PIL case law’ of the Court, viewed from the perspective of consistency, albeit in a broad sense: it examines aspects of judgments of the Court that lend themselves to highlighting various facets and dimensions of consistency. As a matter of fact, current case law and developments invite those who wish to pay attention to issues of consistency regarding the Court’s PIL case law to adopt a broad perspective and, while discussing aspects of consistency, to highlight points of attention regarding the presence, the relevance and the position of PIL in the Court’s case law, going along with issues of ‘fitting in’ of case law.

The paper includes a discussion of aspects of, i.a., C-267/19 and C-323/19 (joined cases Parking and Interplastics), C-774/22 (FTI Touristik), C-230/21 (X v. Belgische Staat, Réfugiée mineure mariée), C-600/23 (Royal Football Club Seraing), C-347/18 (Salvoni) and C-568/20 (H Limited).

The fourth contribution, by Mathijs ten Wolde, comes under the title Oude Nederlandse partiële rechtskeuzes en het overgangsrecht van artikel 83(2) Erfrechtverordening (Old Dutch partial choices of law and the transitional law of Article 83(2) of the Succession Regulation).

On 9 September 2021, the Court of Justice ruled in case C-277/20 (UM) that Article 83(2) of the Succession Regulation on succession does not apply to a choice of law made in an agreement as to succession in respect of a particular asset of the estate. Such a choice of law does not concern the succession in the estate as a whole and therefore falls outside the scope of the said provision, the Court stated. The question arises whether such partial choices of law made before 17 August 2015 have been voided with the CJEU’s ruling now that they likewise concern only certain assets and not the estate as a whole.

The fifth contribution is by Benedikt Schmitz. It is titled Artikel 6 lid 2 Rome I-Verordening en het Duitse Bundesgerichtshof. Bundesgerichtshof 15 mei 2024 – VIII ZR 226/22 (Teakbomen) (Article 6 paragraph 2 Rome I Regulation and the German Federal Court of Justice. Federal Court of Justice 15 May 2024 – VIII ZR 226/22 (Teak trees)).

The German Federal Court of Justice (BGH) has ruled in its recent decision that Article 6(2) Rome I Regulation contains the preferential law approach. In its reasoning, the court specifically refers to three recent CJEU judgements to support this view. However, this case note argues that these CJEU judgements are not a valid basis for such reasoning. Instead, the BGH should have turned to Article 8 Rome I Regulation and its case law to apply the Gruber Logistics ruling by analogy.

The sixth contribution, also by Benedikt Schmitz, is titled Rethinking the consumer conflict rule – Article 6(2) Rome I Regulation and party autonomy in light of principles, efficiency, and harmonisation (dissertation, University of Groningen, 2024) (Summary) is an annotation of the German Bundesgerichtshof of 15 May 2024. In this annotation, he addresses the ‘Günstigkeitsprinzip’ used in German case law. In doing so, he considers the question of whether the Court of Justice bases its application of Article 6 of the Rome I Regulation on the principle of protection or on the principle of favourability. With this annotation, the author builds on his dissertation entitled ‘Rethinking the consumer conflict rule – Article 6(2) Rome I Regulation and party autonomy in light of principles, efficiency, and harmonisation’, which he successfully defended at the University of Groningen on 16 December. A summary of this dissertation forms the last contribution of this issue.

The issue includes a selection of judgments from Dutch courts on different topics of private international law.