REALWorld Law

Real estate finance

Jurisdiction

Will a clause in a security document making a foreign law apply be recognized and applied by the local courts? Does local law always apply in certain circumstances?

Netherlands

Netherlands

All mortgages on Dutch property are governed by Dutch law. Pledges on moveable assets that are situated in the Netherlands, must be governed by Dutch law. Pledges on Dutch receivables can be established under the law of the agreement which obligates to create the right of pledge.

As such, provided the obligation to create the right of pledge is included in the relevant deed of pledge, the right governing such deed of pledge can in principle be any (foreign) law. In practice, Dutch law deeds of pledge will be used to pledge Dutch law governed receivables as foreclosure on such receivables will be subject to Dutch law.

Generally speaking, a choice of law in a contract will, in most cases, be recognized by the Dutch courts. However, such recognition is subject to the following conditions (i) the chosen law may be rejected to the extent that it is manifestly incompatible with the public policy of the Netherlands, and (ii) the Dutch courts must give effect to mandatory rules of Dutch law if such rules must be applied regardless of the chosen law. Additionally, when applying the chosen law of the relevant contract, the Dutch courts might give effect to mandatory rules of law of another country with which the situation concerned has a close connection. If and insofar as under the law of that country such rules must be applied regardless of the chosen law, regard will be had to the law of the jurisdiction in which performance takes place concerning the manner of performance and the steps to be taken in the event of defective performance.