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On 12 July 2012, the Court of Justice of the European Union rendered a judgment in the Vale case. With this judgment, an important further step has been taken with respect to cross-border restructurings within the EU, especially with respect to crossborder conversions. In 2008, the EU Court rendered a judgment in the Cartesio case in which it considered that the cross-border transfer of the seat of a company within the Member States falls within the scope of the freedom of establishment 'to the extent that it is permitted under that law - the law of the Host Member State - to do so'. In Vale, the EU Court has given a clear answer to the meaning of those latter words.

This paper deals with the question how, if at all, international law influences, or has the potential to influence, national laws on co-parenting, and whether it prescribes, supports or obstructs co-parenting. This question is answered by discussing the relevant provisions of international and European instruments, such as the CRC, the ECHR, the EU Charter and the CEFL Principles, by comparing the different types of instruments with each other; and by highlighting the emerging trends.

By surveying binding law in civil and common law jurisdictions and non-binding law produced by national, regional and international organizations, this article tries to map the international state of affairs with respect to child relocation. Various legal topics that have concerned legislatures are discussed. It appears that - worldwide and more specifically within Europe - great variety exists with respect to child relocation law, which leads to legal uncertainty. As a consequence, parents often do not know how to act in case of child relocation. This might have a negative effect on other issues, such as child abduction. Harmonization of law on child relocation seems necessary to diminish the existing legal uncertainty. It is concluded that the development of a European or international non-binding law instrument that addresses both national and international relocation cases could be a first step in the harmonization process.

In Sturgeon, the European Court of Justice considered that EC Regulation 261/2004 on Air Passenger Rights breaches the principle of equal treatment. It held that air passengers with a delay of three hours or more have a right to compensation, unless the airline can prove that the delay was caused by extraordinary circumstances. After a brief look into how airlines generally perform with regards to their obligations under Regulation 261/2004 (section 1), I will summarize the Sturgeon decision as it was handed down by the European Court (section 2), set out the airlines' response to Sturgeon, which amounts to a boycott of the European Court's decision (section 3), analyse the questions referred to the European Court by the High Court in London in which the airlines challenge the validity of Sturgeon (section 4), and briefly comment on questions referred by the German Federal Court on the application of Sturgeon (section 5). My conclusion (section 6) will be that the European Court cannot but confirm Sturgeon, because the decision is compatible with both the Montreal Convention and the Grand Chamber decision in International Air Transport Association (IATA). This conclusion is in line with the opinion I published in January 2010. This article may be misunderstood as presenting a consumer view on Air Passenger Rights. However, it only aims to predict, from an independent perspective, what the European Court will decide in the pending cases with respect to Sturgeon.

Freshwater scarcity is no longer limited to sub-Saharan developing countries; also in Western society, access to unlimited amounts of freshwater is not assured at all times. It has been argued – and laid down in many national legal systems – that access to freshwater is a basic human right. What if corporate freshwater use threatens to interfere with this human right? The main focus of the article is to explore the role of today’s companies in relation to freshwater. A number of tools have been developed to attend to the necessity to reduce corporate use of freshwater. The article discusses specialised water reporting instruments such as the 2007 Global Water Tool and the ‘water footprint’ calculation method. In addition, attention is paid to a CERES report (2010) revealing that the majority of the 100 world’s leading companies in water-intensive industries still has weak management and disclosures of water-related risks and opportunities. To obtain concrete information about corporate water strategies and practices, an explorative analysis was conducted on 20 Dutch multinational companies. The article highlights various innovative practices. In sum, it is demonstrated that companies are expected to bear responsibility for their impact on water resources, in particular when it influences public access to water in areas with freshwater scarcity and/or weak government. Notwithstanding the critical conclusions of the CERES report, it is interesting to see an evolution in corporate research concerning sustainable water use and the development of greener products and greener ways of production.

National law is increasingly influenced by European developments in a process characterized by the term 'Europeanization'. This contribution illustrates the magnitude by which this process of Europeanization continues to shape national contract law in the Member States. In particular, the focus is placed on the dynamic and interwoven interaction of legal scholars, legislators and the courts, on both a national and European level and hence they collectively form the driving force behind the process of Europeanization. The author demonstrates that employing a solely national approach is no longer a sustainable preference in the emerging European legal landscape. For this reason, the author calls for all stakeholders to partake in further debate concerning the future of contract law in the Member States.

In analysing 'wrongful life' cases, comparative law is used extensively. This article examines these wrongful life cases, especially in light of the contradicting outcomes in different jurisdictions across the world, with the Dutch Kelly case and the South African decision in Stewart v Botha as its main examples. I will test the hypothesis that it is not so much the outcomes and (more importantly) the arguments found elsewhere through the comparative law method that are decisive in highly debated cases like those concerning wrongful life, but that instead it is something else that decides the issue, something I would define as the cultural background of, or the legal policies within a tort law system.

研究ノート

The present research is primarily concerned with the conflict rules of the Regulation on succession published in the Official Journal of the European Union on July 17, 2012. The Regulation stipulates the rules of private international law in matters of succession. This study deals with fundamental principles of the European conflict rules on succession and with the question whether these principles already exist in member states’ current national systems of conflict rules. In this way it will be possible to understand the measure in which the national conflict rules of member states will continue to be preserved when the Regulation on succession enters into force. A comparative study of the Dutch, French and Swedish national systems is performed.The Regulation shall apply to the succession of persons who die on or after 17 August 2015.

Het NILG heeft in opdracht van het WODC onderzocht of het wenselijk is om een aanvullende wettelijke regeling te treffen voor het stelsel ‘koude uitsluiting’. In deze literatuurbespreking vindt u een bespreking van dit rapport, evenals de reactie (dd. 26 september 2011) van de staatssecretaris op dit rapport. --- The NILG (Netherlands Institute for Law and Governance) was commissioned by the WODC (the Dutch abbreviation for Wetenschappelijk Onderzoek- en Documentatiecentrum, in English: Research and Documentation Centre) to investigate the necessity to provide an additional legal regulation of the total separation of property (contractual regime allowing spouses or registered partners to exclude any community of assets). In this review the author discusses the above-mentioned report and the response of the State Secretary (dated September 26th, 2011).

The aim of this research is to consider whether the articles 6:107 and 6:108 BW should be reconsidered. These articles grant third parties an action to bring an independent claim against the tortfeasor in personal injury cases. The characteristics of these articles are threefold. First, these claims are derived from the liability towards the direct victim. Second, the actions are of a limited of nature. Finally, when the damage suffered by the third party is a consequence of the injury or death of someone else, these apply on an exclusive basis: a right to full compensation cannot be allowed on the basis of tort law. The main aim of these articles is to set clear boundaries for liability in personal injury cases. Someone is a ‘third party’ when his damage is caused by the death or injury of someone else. That direct nature is determined in fact, but that factual determination is followed by a normative conclusion: a factual third party cannot be awarded full compensation. In my opinion this is a mistaken starting point. The focus should be on the question whether a protected interest exists and whether the tortfeasor has infringed that protected interest. Next, from the perspective of private enforcement two questions should be distinguished. First, which third party damage should be compensated when the foundation is found in the liability towards the direct victim? Second, under which circumstances should the interest of third parties autonomously be protected by tort law? To start with the first question. The government has tried to expand the scope of the derived actions. In my opinion there is one argument against this solution: the fact that liability is founded on one party cannot be directional for the compensation of third party damage which cannot be qualified as the transferred loss. The tortfeasor is first responsible for the damage caused by his wrongful act towards the person against who liability exists. By making exceptions for the benefit of one type of third party or for one of his losses, boundaries will be difficult to explain and maintain. In my opinion another solution is more appropriate: answering the second question of enforcement. The necessity of making exceptions is mostly advocated in favour of next of kin. Decisive in concluding that the interest of family members should autonomously be protected is that I consider the interest of ‘direct family members’ to be the most protectable interest next to someone’s life and health. A family is a unit which forms the essence of someone’s personality. By taking someone from that unit or seriously injuring that person, a family member is directly forced to reconsider life choices. Tort law should facilitate the (new) choices which family members are forced to make. The essence of my conclusions is that the system of articles 6:107 and 6:108 BW should be reconsidered as far as its exclusive scope is concerned. General tort law should be decisive for someone’s position in tort law, not the factual cause of someone’s damage.

Western societies are witnessing an emerging socio-legal trend towards transnational civil litigation against multinational corporations in relation to harm caused to people and planet abroad. Increasingly, individuals and communities from developing host countries who have been detrimentally impacted by the local activities of multinational corporations turn to Western society home country courts to address and seek redress for their harm through private law mechanisms. One of the main driving forces behind this development has been provided by the Alien Tort Statute (ATS), an obscure 1789 US federal statute that has since the 1980s been used as a legal basis for tort claims before US federal courts relating to international human rights violations perpetrated anywhere in the world. Since the late 1990s, dozens of ATS-based civil claims have been brought against a score of multinational corporations that have found themselves subject to the exercise of personal jurisdiction by US federal courts. Well-known are the claims against Shell for its alleged involvement in human rights violations perpetrated by the Nigerian government against environmental activists in the Ogoniland region of the Niger Delta. Similar transnational civil liability claims against multinational corporations have been brought before courts in other Western societies, like the UK, Australia, Canada and the Netherlands. In the absence of a specific statute such as the Alien Tort Statute, these claims have typically been based on general principles of tort law and the tort of negligence in particular. Recent examples include: the civil claims pursued in the UK against Trafigura for its involvement in the Probo Koala toxic waste dumping incident in the Ivory Coast; and the tort claims against Royal Dutch Shell and its Nigerian subsidiary relating to oil spills in the Niger Delta, which are currently pending before the The Hague district court. These 'foreign direct liability cases' arise against the background of a global governance gap that results from the rapid globalization of economic actors and activities on the one hand, and the lack of global institutions to manage their worldwide impacts, on the other. The increasing reliance, through these cases, on domestic private law mechanisms to realise corporate accountability for violations of human rights, health&safety, environmental and labour norms perpetrated abroad, raises interesting and complex questions. Which factors determine the feasibility of foreign direct liability cases? Are companies under a legal obligation to protect people and planet beyond locally imposed and enforced legal requirements? Can Western society systems of tort law play a role in addressing the regulatory gap that exists with respect to the transnational activities of internationally operating business enterprises? This study sets out the legal and socio-political framework of this particular type of transnational civil litigation and traces the role that Western society systems of tort law may play in promoting international corporate social responsibility and accountability. In doing so, it focuses on the feasibility of bringing foreign direct liability claims before domestic courts in the EU Member States - the Netherlands in particular - and sets out a number of recommendations for European policymakers.

The main question of this PhD thesis is whether for legal and fiscal service providers, the Dutch anti-money laundering reporting duty that is based on the Money Laundering and Terrorist Financing Prevention Act[1] (hereafter: Wwft) and its enforcement meet the principles of legal certainty, legal privilege, effectiveness and equivalence. This study starts with an introductory chapter and has four subsequent parts: the normative framework (Part I), the anti-money laundering reporting duty (Part II), enforcement (Part III) and conclusions and recommendations (Part IV). Part I Chapters 2 and 3 contain the normative framework. These chapters describe legal certainty, legal privilege, effectiveness and equivalence as principles of good enforcement. Chapter 3 describes legal privilege in more detail and studies the extent to which the confidential relationship between practising lawyers (advocaten) and their clients, is protected in case law of the European Court of Human Rights (ECtHR), the European Court of Justice and the Dutch Hoge Raad. Part II Chapter 4 shows that the scope of the Money Laundering Directive has been substantially extended over time. Chapter 5 analyses the implementation of the anti-money laundering reporting duty and the legal-privilege exemption that are based on the Third Money Laundering Directive for legal and fiscal service providers in the Netherlands, Belgium, France, and England and Wales.Chapter 6 analyses how the legal-privilege exemption of the Third Money Laundering Directive should be interpreted with regard to practising lawyers, civil-law notaries, accountants and other legal and fiscal service providers, in order to comply with the criteria of protection of legal privilege, effectiveness, legal certainty and equivalence. Chapter 7 addresses a number of obscurities regarding the content and scope of the Wwft reporting duty for legal and fiscal service providers. Part III Chapter 8 is an introduction, offering an overview of the various existing systems of supervision of the various professions, the Dutch government’s views on this and the current developments regarding the supervision of civil-law notaries and practising lawyers. Chapter 9 analyses the external Wwft supervision by the Bureau Financial Supervision (hereafter: BFT). Chapter 10 describes the internal Wwft supervision by the KNB and the president of the notarial disciplinary court. Chapter 11 describes the internal Wwft supervision of practising lawyers, analysing it according to the principles of legal certainty, legal privilege, effectiveness and equivalence, and discusses proposals to enhance supervision. Chapter 12 discusses the internal Wwft supervision by the professional organisations of accountants and tax advisors. Chapter 13 shows that currently the disciplinary sanctions of the Wwft are not legally certain, not effective and not equivalent to the administrative sanctions through the Wwft regime and the Financial Supervision Act. Part IV The final chapter, Chapter 14, presents the conclusions and recommendations for each profession separately. -------------------------------------------------------------------------------- [1]Wet ter voorkoming van witwassen en financieren van terrorisme

‘Innovatie’ is het woord dat de rechtspleging welhaast beheerst. Er zijn echte innovaties zoals de wetsvoor- stellen ‘Prejudiciële vragen aan de Hoge Raad’ en ‘Versterking van de cassatierechtspraak’, die beide nieuwe, spannende en nuttige instrumenten toevoegen aan de (civiele) rechtspleging. Maar een minister die luistert naar wat zo ongeveer alle direct betrokkenen adviseren als het gaat om bijvoorbeeld griffierechten en gesubsidieerde rechtsbijstand, dat zou pas echt innovatief zijn. Want niet alle vormen van ‘innovatie’ verdienen het daaraan vaak inherente predicaat ‘goed’. En stilstand is misschien niet altijd achteruitgang.

Deze zomer publiceerde de Europese Commissie een voorstel op grond waarvan het mogelijk zou worden ten behoeve van grensoverschrijdende Europese vorderingen beslag op bankrekeningen te leggen. Het betreft een zelfstandige Europese procedure die geplaatst wordt naast de nationale regelingen op dit gebied. De auteurs deden eerder in opdracht van de Raad voor de rechtspraak onderzoek naar de Nederlandse regeling inzake conservatoir beslag en kwamen tot de conclusie dat de toenmalige praktijk onevenwichtig was. In deze bijdrage wordt de vraag beantwoord hoe een Europese regeling voor conservatoir derdenbeslag op bankrekeningen er vanuit het oogpunt van evenwichtigheid uit zou moeten zien.