One of the great achievements of the Asser Instituut, under Voskuil's inspiration, has been the study and documentation of international arbitration. It may be appropriate therefore to present here a chapter on one aspect of arbitration on which documentation is scarce and about which little has been written.

The question we shall consider is the familiar one of applicable law: what is the law governing foreign investments made under an investment treaty? By what law should arbitrators be guided when they deal with international investment disputes? Some of the investment treaties concluded to promote and protect international investments answer these questions, which of course are essentially questions of private international law. The treaty rules on applicable law often refer arbitrators to rules of international law as well as to the national law of the host state (including its private international law). Thus, we are concerned with mat grey zone between public and private international law where it is often difficult to find one's way or to ascertain what rules should be applied: those of municipal law (of which private international law forms part) or those of (public) international law. It is widely held by international lawyers that rules of public international law take precedence over national law and therefore over private international law, whenever a conflict arises between them. This question, however, is controversial; U.S. doctrine, for instance, holds that national (U.S.) laws take precedence over international law if they are expressed in sufficiently clear terms.

In several European countries there is a system of rules governing the question of the international jurisdiction of the courts in civil law matters. Such rules are laid down either as a part of the law of civil procedure (such as in the Polish Law of Civil Procedure of 1964) or are prescribed within the framework of laws on private international law; examples of the latter system are the Czechoslovak Act on Private International Law and International Procedural Law of 1965, the Hungarian Act on Private International Law of 1979, the Yugoslav Act on Private International Law of 1982 and the Swiss Act on Private International Law of 1987. In other countries, e.g. in Germany, The Netherlands, Austria and France in regard to compétence ordinaire, the rules on internal jurisdiction are applied, mutatis mutandis, to establish international jurisdiction. However, conventional law on international jurisdiction takes precedence over conflicting provisions of national law.

The new Dutch Arbitration Act (Articles 1020–1076, Book IV of the Code of Civil Procedure) entered into force on 1 December 1986. After five years of experience with the new Act, the time has come to draw up a provisional account of its reception by the courts. More than 50 court decisions have been reported and annotated by me in the Tijdschrift voor Arbitrage (TvA) a bi-monthly arbitration periodical (in Dutch). It is on the basis of this material that this contribution has been written. Of course, not all of these decisions will be referred to; a choice had to be made as will be seen from the headings which follow.

International litigation is a relatively new phenomenon. Only arbitration can boast an important international history. Litigation between States before an established court started early in the present century. International courts where individuals can litigate came only during the second half of this century.

International courts derived their procedural rules from national courts, but little attention has as yet been given to the consequences of the plurality of national and international proceedings. The most obvious drawbacks of this are the losses in time and money for the litigants unavoidable in national and in international litigation. Has the right balance been found between efficiency and fairness?

In the present article I will discuss first the principal burdens laid on litigants and in particular on those who enter into international litigation. Subsequently, I will consider possible improvements. Finally, I shall devote some extra attention to the two kinds of international litigation most frequent in Western Europe: the proceedings before the Court of Justice of the European Communities in as far as it adds to national proceedings—this means only the proceedings under Article 177 of the EEC Treaty—and the proceedings before the two institutions in Strasbourg: die European Commission and the European Court of Human Rights. Increasingly, proceedings before these judicial organs are necessary in addition to national court proceedings. They therefore add to the burden of the litigant It may be interesting to compare these two procedures in order to investigate whether they can learn from one another.

The dilatory defence of security for costs is a burdensome relic. It should therefore be abolished. If such a radical reform is not possible more appropriate rules should govern. These rules may be expressed in the following terms:

Upon application by the defendant the judge may at his discretion order security for costs. No security is ordered if

1. the plaintiff has local funds to meet his potential liability for costs, or

2. the local decision for reimbursement of the defendant is enforceable in the State of the plaintiff's place of business, or

3. the suit in local courts of the defendant's place of business is not frivolously brought.

Having close links with the mutinous tradition in choice of law thinking of the Amsterdam University Law School, Voskuil does not think highly of the traditional choice of law rules. In his address as doctor honoris causa of the University of Zagreb Voskuil submits that the choice of law rules constitute just a choice mechanism, devoid of any philosophical or ideological basis and that they form a defective tool in that they push international cases into a national legal environment and also that they lean heavily on corrective devices that tend to blur the judicatory process.

The problem of defaulting maintenance debtors is not just an international phenomenon; it exists in purely domestic relationships as well. The difference is that in an international case, particularly where the parties do not reside in the same country, additional problems complicate the situation. Most of these problems relate to procedural questions, such as those of international jurisdiction and enforcement of foreign orders. Since maintenance creditors are usually needy parties, other problems in the field of procedural law relate to the obtaining of legal aid and exemption from security for costs. Apart from that, questions concerning the transfer of funds might also arise.

It was soon clearly understood by those involved in the process of European integration that the customs union could not be considered to be the final stage of that process. At least an Economic Union should follow and the latter, in turn, should not be deemed to be complete without a Monetary Union. Real integration, however, cannot be limited to the economic field: security and foreign policies also possess a European dimension.

Arbitration is an institution which preceded courts; yet shortly after the appearance of the latter, arbitration assumed the position of the younger (and weaker) brother. In the course of history, this predicament has only been confirmed and aggravated. Courts of justice have become the representatives of the ‘normal’ settlement of disputes, their legitimacy has been beyond doubt Arbitration has been reduced to an exception, the limits and the functioning of which have been firmly been controlled by courts. There have been revolts against this plight, yet there is practically only one area in which such revolts have really been successful. This is in the domain of international trade. Today, it is an uncontested fact that arbitration is the dominant method of settling international trade disputes; and at the same time, international commercial arbitration has become an almost completely self-sufficient institution. While gaining ground and strength, international commercial arbitration has also gained self-confidence. It has been stressed with increasing frequency (and determination) that the self-reliance of international commercial arbitration is a virtue, and that it advances broader common causes. In the opening sentence of his article on court intervention in arbitral proceedings, Delaume stresses: ‘It is generally recognized that, in order to be fully effective, transnational arbitration must be freed from judicial interference.’

Attachment of assets belonging to a debtor is liable to abuse, especially if the existence of the claim is contested and doubtful. That is why the rule has been developed mat attachment, in principle, is only permitted after a court has established the existence and validity of the claim. The court may do so in a final judgment which at the same time orders the debtor to pay. Thus, the attachment is nothing else than execution of the judgment However, in many countries a prejudgment attachment may be levied for fear that otherwise the debtor would spirit away bis assets pending proceedings. Sometimes this institution is coupled with special kinds of proceedings (e.g., replevin, unfair competition, landlord and tenant). This paper, however, is chiefly concerned with the general type of prejudgment attachment, and with the conditions under which it is permitted. It has been thought of interest to trace its vicissitudes through French, Dutch and English law. Dutch law has generally leaned heavily on the Napoleonic codification, but showed some independence precisely on this point English law is generally not indebted to French law, except perhaps precisely on this point.

In Dutch legal literature Van Boneval Faure was the first scholar to give an enumeration of the principles of civil litigation. He discerned seven principles: the public nature of civil litigation, passiveness of the judiciary, the hearing of both sides (audi et alteram partem), inquiry in two instances, supervision through appeal in cassation, mandatory representation at law and, finally, the absence of cost-free litigation.