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Tuesday, March 17, 2015

A Dutch "State of the Treaties"

As a follower of treaty ratifications with a special emphasis on the Netherlands, the publication of the "Rapportage over stand van zaken parlementaire goedkeuring verdragen" (Report on the status of parliamentary approval of treaties) is always of special interest as it lists which treaties will be submitted by the government for parliamentary approval in the next years (with a special emphasis on the actions to be taken in 2015). As such it can be regarded as a "State of the Union" (or more Dutch: Prinsjesdag) regarding treaty ratification. In this post I will highlight some of the plans

The publication consists of 4 lists of treaties, depending on the action the government has with them:
*List I: Treaties that are expected to be sent to parliament in 2015 (by far the most important and longest list)
*List II: Treaties that will be laid before parliament at a later date, or towards which no decision has been taken)
*List III: Treaties that will NOT be laid before parliament, but for which that position may change over the next few years
*List IV: Treaties wrt a decision was taken not to lay them before parliament

As the Kingdom of the Netherlands consists (after the dissolution of the Netherlands Antilles in 2010) of 5 separate territories (Aruba, Curacao, Caribbean Netherlands, European Netherlands, Sint Maarten) with different legal systems, a decision to apply treaties is always taken for each territory separately and explicitly mentioned here.

The first point that springs to mind when looking at List I is the high level of ambition of the Government: it plans to introduce a staggering 48 conventions in 2015! A peak at the corresponding List I of 2014 (50 treaties) however shows that as many as 31 were already planned for parliamentary approval a year earlier. The reason why the Government only was able to fulfill 40% of its treaty ambition is however not discussed. The list therefore also contains -apparently inevitable- copy-paste errors: The Hague Maintenance Convention falls within the exclusive competence of the European Union, and the Dutch legislator only has ratification possibilities regarding the Caribbean territories and stated in 2014 correctly to "wait for approval on behalf of the EU". It is a bit surprising to read about the same waiting exercise in 2015: the treaty already entered into force for the EU (except Denmark) on 1 August 2014!.

Jurisdiction in civil matters

What's missing? I was surprised to see no mention of the 2005 Hague Choice of Court Agreements convention. That convention should make sure that a court chosen by parties in a business contract is only one that takes a case, and -more importantly for the small Caribbean jurisdictions- that a decision by a court chosen is recognized in  all other convention parties. Especially the latter case seems important in view of the hesitation of many foreign courts to recognize decisions of jurisdictions with whom they are not very familiar. With Mexico and the European Union being a party from October/November, the convention will ensure recognition on 27 countries in one go! The much more extensive 2007 Lugano convention on jurisdiction in civil and commercial matters (confusingly abbreviated EVEX in Dutch case law)  is on the 2015 list. Also here the EU is already a party (as are Denmark, Iceland, Norway and Switzerland) and the convention would thus govern jurisdiction in civil disputes between the Caribbean territories and 30 countries. The convention however was already on List I in 2014 AND 2013, and had as of today not yet sent to the Council of State of Advice (the last step before parliamentary approval is requested).


The list contains several IP-related treaties. New compared to last year is the 1999 Geneva Act to Hague Agreement on industrial designs (at least: for the European Netherlands and Curacao). Ratification of the Netherlands would probably trigger entry into force also for Belgium and Luxembourg, as those two have already ratified and the three are to be considered as a single territory with respect to Designs. Within the Benelux a further a December 2014 amendment of the Benelux Convention for Intellectual Property (BOIP) is also mentioned, which would include more grounds for opposition and annulment in line with Community Trademark regulations.

Unsurprisingly, also the "Agreement on a Unified Patent Court" is on the list: the court will be a common court to EU member states for litigating European patents, and its entry into force will trigger the possibility to apply for the unitary patent: a European patent with the same "unitary" effect in several EU states. As the Agreement will apply to the territory of the state party where the European patent applies, this agreement will (without special declarations) also apply to the non EU territories Caribbean Netherlands, Curacao and Sint Maarten (but not Aruba) in a similar way that the UK ratification will also apply to the Isle of Man. The list however sets application the Caribbean territories as "not applicable" suggesting (as the government did here as well) that ratification is simply impossible. To me it looks like this impossibility is a political and possibly practical one: I hope the territories have had their say in whether they wanted to participate or not as IP is fully in their competence!

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