THE DUTCH CARIBBEAN AND ROME I AND ROME II

Nothing has changed as of 10-10-10

The Country the Netherlands Antilles consisted of Bonaire, Curacao, St. Maarten, St. Eustatius and Saba, and formed part of the Kingdom of the Netherlands. On October 10, 2010 the Netherlands Antilles ceased to exist as a country. Two new countries were born on that date: the country Curacao and the country St. Maarten. The three remaining islands (Bonaire, St. Eustatius and Saba, a.k.a. the BES-islands) became special overseas territories (sort of municipalities) of the Netherlands. The question is whether the new status of the islands mentioned means that treaties to which the Netherlands is a party apply automatically.

On 17 December 2009, the EVO-convention [Convention on the Law applicable to Contractual Obligations] was replaced by Regulation (EC) no. 593/2008 of the European parliament and the Council of 17 June 2008 regarding the law applicable to obligations arising out of agreements, OJ EU 2008, L177/6 (Rome I).

Regulation (EC) no. 864/2007 of the European Parliament and the Council of 11 July 2007 regarding the law applicable to non-contractual obligations, OJ. L 199 of 31 July 2007, 40 (Rome II) has been in force in the Netherlands since 11 January 2009. It applies to non-contractual obligations which have arisen after that date. The regulation has universal application and therefore applies irrespective of whether or not it is the law of a member state (article 3 Rome II).

Rome I applies in the Netherlands but not in the other countries of the Kingdom (Aruba, Curacao and St. Maarten). Although Bonaire, St. Eustatius and Saba (the BES-islands) became part of the Netherlands on 10 October 2010, the same applies to them: Rome I does not apply there. The EVO-convention still applies in the three countries as well as in the three territories mentioned. Rome II does not apply either in these overseas countries and territories. As far as these treaties are concerned, the position of the Dutch Caribbean remains after all unchanged on commencement of the new political structure.

Karel Frielink
Attorney (Lawyer) / Partner

(1 February 2011)

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