The doctrine of immunity of States has always had the interest of Bert Voskuil. The question whether a foreign State may be summoned before a national court has been raised and answered by him in numerous essays. Therefore, a study of the question how to summon a foreign State before the national judiciary is not out of place in a collection of essays on international procedural law, dedicated to Bert Voskuil.

Recently, Bert Voskuil involved the Asser Institute and, in particular, its Department of International Commercial Arbitration in his keen interest in exploring ways and means of improving the functioning of the Permanent Court of Arbitration (‘PCA’) and of making it more attractive to parties to disputes. One cannot but approve this initiative as it is regrettable that the PCA is under-utilized whilst it has every potential in it to be a prominent forum for international arbitration.

Knowing Bert Voskuil's interest in matters of international judicial jurisdiction and in the relation between jurisdiction and party autonomy, I thought he might be pleased with an essay on the interpretation of Article 18 of the EEC Jurisdiction Convention. Even so, it is with some trepidation that I venture into an area in which he is undoubtedly the expert. My observations will not be new to someone who has explored the procedural aspects of private international law as extensively as Bert Voskuil, and I have little hope of surprising him with my conclusions. Nevertheless, the question whether, and to what extent, jurisdiction can be based on implied prorogation rather than on an express jurisdiction agreement has scarcely been discussed in Dutch legal literature, and this Liber Amicorwn offers me a welcome opportunity to examine this subject a little further.

Some twenty-five years have passed since the Brussels Convention on Jurisdiction and Enforcement of Judgments was first drafted and it seems to be doing rather well. It is in force in all twelve Member States of the European Community and has become a familiar part of the work of numerous courts in Europe handling commercial disputes. Its success is borne out by the conclusion of the Lugano Convention of 16 September 1988, extending the scheme of the Brussels Convention to the Member States of the European Free Trade Association (EFTA), which obtained in only three years after signature the necessary ratifications for its initial entry into force on 1 January 1992. In addition, there is much support among scholars from Eastern Europe for the accession of their countries to the Lugano Convention (which, unlike the Brussels Convention, provides for accession independently of membership of the European Community or EFTA).

Bert Voskuil was a member of the jury for my doctoral dissertation. Together with my degree he gave me a second present: a Book on Books. It was written by a friend of his (John Landwehr), and described many aspects of Dutch life, at home and abroad, through stories, excerpts and illustrations taken from seventeenth-century books in the author's collection.

That most delightful book contains a find for private international law —which can be mentioned on this occasion. A 1692 book on captain Cornells Tromp gives the terms under which the beleaguered ‘city’ of Nieuw Amsterdam on Manhattan island surrendered to the belligerent English. The terms were agreed in 1664 (6 September), when Pieter Stuyvesant was Governor, and contained the promise to have the colony transferred to the English Crown as soon as further conditions were agreed — the latter transaction was formalised in 1667.

This essay is intended as a coda to an earlier essay that I had the privilege and pleasure of co-authoring with Bert Voskuil on the ‘Composition of the Arbitral Tribunal’ as regulated by the UNCITRAL Model Law on International Commercial Arbitration. In that essay, particular reference was made to the new Arbitration Act of the Netherlands. It is my intention to examine once again the UNCITRAL Model Law and to compare it with the Netherlands Arbitration Act, but narrowing the focus to court assistance in the appointment of arbitrators and the attendant question of whether the court may exercise a supervisory function at this point by examining the validity of the arbitration agreement. The point of departure is a recent Hong Kong decision in which this question was examined under the UNCITRAL Model Law, applicable to international arbitrations in Hong Kong. After reviewing the case and examining the relevant provisions of the Model Law, a comparison will be made with the Netherlands Arbitration Act.

It was Bert Voskuil, ten years ago when on a research semester at the Law Faculty of Uppsala University, who first introduced me to Dutch law, in Sweden a far too neglected area of comparative research. After a number of discussions or rather explanatory remarks from Bert Voskuil's side on the concept of levering (traditio), which was then my primary topic of interest, he also mentioned the important role in Dutch law of the actio Pauliana. I looked quite bewildered, since outside bankruptcy, this institution is, strangely enough, unknown in Scandinavian law. It caught my interest, and in a later work I made an effort to present it to the Swedish legal audience. Sweden is still outside the Community and barred from cooperation under the Brussels Convention. We are, however, on the point of ratifying the parallel Lugano Convention signed in 1988 by EEC and EFTA States. The choice of topic for mis Liber Amicorum, thus, came easily: some reflections on the actio Pauliana in European procedural law.

(1.1) The discussion regarding the place and influence of rules of public law in private international law has, at least in respect to dogma, yielded lasting results. Concepts such as priority rules or règles d'application immédiate have become common property in the law of conflicts. The doctrine of priority rules has been recognized to a certain extent by Article 7 of the EC Convention on Contractual Obligations. The question of to what extent such a rule is applied in practice is determined chiefly by how it is appraised by the courts and their willingness, within the classical private international law framework, to apply foreign rules of public law, the applicability of which arises out of their own nature. This determination is made within the framework of private law procedure and the status of public law is, in that case, also to be examined within a private law framework.

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.

The scholarly contributions of C.C.A. Voskuil—Bert to his friends—include a number of publications devoted to various aspects of international civil procedure, a topic all too often neglected by conflicts scholars. He has paid special attention to jurisdictional issues, which furnished the topic for the doctoral thesis he presented thirty years ago. The honoree's emphasis on the procedural side of private international law reflects a commendable awareness of the implications jurisdictional and other adjective rules have in practice, and how they touch upon the theoretical foundations of our discipline. It therefore seems appropriate to discuss some of these implications in the Liber Amicorum dedicated to our Dutch friend and colleague.

The need to observe procedural rules by the Community institutions has been underlined by the Court of Justice of the European Communities. In my contribution to this Liber Amicorum I would like therefore to focus attention on the attitude adopted by the Court in setting criteria for procedural requirements.

Reviewing the legality of acts of the Council when the action is brought by a Member State is a noteworthy and curious phenomenon, since the Council consists of representatives of the Member States. Therefore I have focussed my attention especially on the Council and the cases concerning successful actions of Member States against irregularities in the decision-making by the Council.

‘S'il est un problème irritant, c'est Men celui des voies de recours en matière d' arbitrage’. These are the opening words of R. Perrot's magnificent report from 1980 on ‘Les voies de recours en mati`re d'arbitrage’. He continues with the observation that the expansion, diversity and fragmentation of the ever-increasing number of means of recourse lead to post-arbitral disputes which negate all of the positive aspects of arbitration. This all works to the advantage of the losing party who can use this maze of recourses to vent his dissatisfaction. These remarks refer to the French legislation on arbitration which was in force at that time. Moreover, a similarly pessimistic view can be found in a comparative study by P. Schlosser on the setting aside of arbitral awards published in the same year.

(1) According to ancient common law precedents, fair hearings are required by natural justice. In 1723, a somewhat difficult scholar, Dr. Bentley, who had been deprived of his degrees by the University of Cambridge because of grave misconduct, was reinstated by the King's Bench, on the ground that he had not been asked to make his defence as required by the laws of God and men. More than two centuries later, the House of Lords held that the dismissal of Brighton's Chief Constable was void for similar reasons: the town's Watch Committee had given him no notice of any charge against him and no opportunity to make his defence. Lord Reid, giving the leading speech, said that the Brighton authorities had been exercising a power affecting a person's rights, and that they were therefore ‘subject to the principles of natural justice’—whether they were acting in a judicial or in an administrative capacity.

(1.1) Cooperation and coordination within the legal order of the Community between the European Court of Justice and the national courts and tribunals are primarily based upon Article 177 of the Treaty of Rome. This provides for the possibility of a preliminary ruling by which a national court may request the European Court to give a ruling upon the interpretation of the Treaty itself or upon the validity and interpretation of acts of the institutions of the Community, such as the Council or the Commission.

The past two years—1990 and 1991—have possibly been the most important in peacetime history in Europe for several centuries. The breakdown of communism in Eastern Europe and the U.S.S.R., the removal of the iron curtain, the fall of the Berlin wall and the reunion of Germany, the end of the Warsaw Pact, the increased integration in Western Europe and the disintegration of the U.S.S.R. and Yugoslavia—each one of these events is important enough to be a political landmark. Together they constitute a period of outstanding importance and, probably, a platform for equally significant changes to come.

‘Error is the mark of the higher organisms’. This statement struck me again when, composing myself to the honourable and pleasant task of preparing a contribution to the Liber Amicorum for my learned friend Bert Voskuil, I reconsidered ‘the Case of Zaire’, a case which raised the question whether and to what extent a judicial error was committed by the Dutch court that declared a foreign State bankrupt. If the judgment has to be considered an error of law, that court certainly qualified as a ‘higher organism’.

Let us first look at the facts of the case.

The above quotation from Batiffol appears in the part of his book where the xenophobic approach to the legal position of a foreigner in ancient Greece is debated. Although centuries have passed since those times, that attitude is still deeply ingrained in human nature. The field of law had not escaped it either. In spite of the fact that no judge would be willing to admit it, it still influences many of them, at least unconsciously, albeit that they are honest, decent and learned persons. Only those of them who have been for a considerable time immersed in problems of the application of foreign law have been able, to a greater or lesser degree, to eliminate it. In this short essay I shall discuss briefly, without in any way attempting to be exhaustive, some of the aspects of the problem. The idea is simply to draw attention to an issue which is usually avoided in legal writing.