‘Si les découvreurs et les colonisateurs de l'Aménque méritent une reconnaissance éternelle pour avoir doté l'univers d'un monde nouveau, certes, les hommes qui firent naître ce monde à l'existence internationale et qui par là rétalirent l'équilibre disparu dans l'ancien monde, suivant la phrase de Canning, ont aussi le droit d'être placés au premier rang parmi ceux dont l'oeuvre bienfaisante est destinée à retentir à travers les siécles. Washington, Bolivar, Miranda, Narino, Santander, San Martin, O'Higgins, Hidalgo, Artigas, autant de noms immortels qui resteront attachés, non seulement à 1'histoire des origines des républiques amÉricaines, mais aussi, et à un titre égal, à l'histoire de l'évolution politique de I'humanité vers la justice et vers le droit.’

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.