Table Of ContentEssays on International & Cornparative Law
T.M.C. ASSER INSTITUUT
ESSAYS ON
INTERNATIONAL & COMPARATIVE LAW
IN HONOUR OF
JUDGE ERADES
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PRESENTED BY THE BOARD OF THE
NETHERLANDS INTERNATIONAL LAW REVIEW
Springer-Science+Business Media, B.V.
ISBN 978-94-017-1470-9 ISBN 978-94-017-1468-6 (eBook)
DOI 10.1007/978-94-017-1468-6
© Springer Science+Business Media Dordrecht 1983
© etching: Ceciel Reynders
Originally published by T.M.C. Asser Instituut, The Hague, in 1983.
Sofrcover reprint of the hardcover 1s t edition 1983
Director: C.C.A. Voskuil
Deputy Director: J.A. Wade; Heads of Departments: M. Sumampouw (Private Inter
national Law), Ko Swan Sik (Public International Law), A.E. Kellermann (Law of
the European Communities, General Secretary): Office Manager: G.J. de Roode.
The T.M.C. Asser Instituut was founded in 1965 by the Dutch universities offering
courses in international law to promote education and research in the fields of law
covered by the departments of the Institute: Private International Law, including
International Commercial Arbitration, Public International Law and Law of the
European Communities. The Institute discharges this task by the establishment and
management of documentation and research projects, in some instances in co
operation with non-Dutch or international organisations, by the dissemination of
information deriving therefrom and by publication of monographs and series.
In addition, the Institute participates in the editing of the Yearbook Commercial
Arbitration and in the editing and publishing of, inter alia, the Netherlands In
ternational Law Review and the Netherlands Yearbook of International Law.
All rights reserved. No part of this publication may be reproduced, stored in a re
trieval system, or transmitted in any form or by any means, electronic, mechanical,
photocopying, recording or otherwise, without prior written permission of the
copyright owner.
CONTENTS
Judge Erades VII
M. BOS, Prolegomena to the Identification of Custom in International
Law
R. CLETON, Limitation of Liability for Maritime Claims 14
H. DUINTJER TEBBENS, Statutory Controls on Standard Terms
employed in an International Context: Is the Cure worse than the
Disease? 32
J.L.M. ELDERS, Towards a System of Equitable Standards in the New
Dutch Civil Code 49
W.L. GOULD, International Law and Subnational Intergovernmental
Law: Some Relationships 59
W.E. HAAK, Internationalism above Freedom ofContract 69
E.H. HONDIUS, Arbitration Clauses / so me comparative observations 79
L.F.D. TER KUILE, International Issues on Coliective Agreements of
Seafarers 92
A. KOR THALS ALTES, Seamen's Strike and Supporting Boycotts:
Recent Case Developments Abroad 104
E. PALLU A, The Nationality of Ships in Yugoslav Law with Reference
to Present International Developments 123
w. SNIJDERS, Subsequent Choice of Law and Compromissory Agree-
ment (Vaststellingsovereenkomst) 134
P.M. STORM, Quod Licet Iovi ... The Precarious Relationship between
the Court of Justice of the European Communities and Arbitration 144
A.M. STUYT, Dr. Erades, Chairman of Two International Arbitral
Tribunals 178
A.J.P. TAMMES, Soft Law 187
J.P. VERHEUL, The Forum Actoris and International Law 196
C.C.A. VOSKUIL, On "Giving a Hand" in Swedish Law of Civil Proce-
dure: Recent developments in the Law on Handräckning 210
J.A. WADE, Executive and Judiciary in Foreign Affairs: Recognition
of Foreign Lawmaking Entities 235
Bibliography Judge Erades 258
JUDGE ERADES
Lambertus ("Bob") Erades was born in The Hague on the eleventh day of the
eleventh month of the year 1911. Astrologists no doubt will have their own word
to say about the deeper significance of this remarkable date, and rnaybe inquire
whether the future judge saw the light of day at 11.11 a.m. or p.m. Granting the
fact that at 11.11 p.m. there will not have been too much light of day, I feel
satisfied with the symbolism of the mere date admirably fitting a single-purposed
man if ever there was one.
Young Erades went to school in the town of his birth - le plus beau villag e
de l'Europe, as it was known in the eighteenth century - and finished his educa
tion there in 1929. The next year he successfully passed a supplementary examina
tion, the so-called Staatsexamen, in order to qualify for the study of law. He then
read law in Leyden from 1930 to 1934.
Erades' professional career started in 1935 when as un unpaid assistant he
joined the Minors Protection Board (Voogdijraad) at The Hague and established
hirnself as a Member of the Bar. Two years later, he switched to a stock-broker's
firm in Amsterdam as a trainee, and in 1938 he took a job as a legal counsellor
with the Royal Netherlands Blast Furnaces and Steel Manufacturers of IJmuiden,
where he was to stay until 1945. Following an interval with the Military Govern
ment in Haarlern, he then served from 1946 to 1948 with the Special Tribunal
for War Cases and as an ad hoc Member of the Court of First Instance in that
city, aperiod which proved to be decisive in Erades' career, for in 1948 he was
appointed a regular Judge of the Court of First Instance in Rotterdam where, as
earlyas 1958, he was to rise to the rank ofVice-President. Judge Erades still held
that position when he retired after having reached the age of seventy on 11
November 1981.
This being but the skeleton of Judge Erades' active life, there fortunately is
very much to add before any degree of completeness in the description of his
person and work can be reached. However, no such description would be adequate
without mention being made of his marriage on 17 June 1942 to Miss Marie
Elisabeth Hurenkamp. Two daughters sprang from their union, and it is in his
family life that this devoted husband and father found the necessary counter
weight to the many pressures in the professional field.
Judge Erades' professionallife was bounded by his judicial and arbitral activities,
his work on a number of Committees, his writings on internationallaw, and - last
but by no means least - his crucial contribution to the Netherlands International
Law Review.
No one familiar with the bustIing Port of Rotterdam will have any illusion
about the demands made on the judicial authorities by those who are daily en-
VII
gaged in its vigorous struggle for life or otherwise partaking in its manifold
activities. As a commercial and industrial centre, Rotterdam grew considerably
after the Second World War: its area increased greatly, as did its population. It is
only natural that the Rotterdam Court of First Instance had to keep abreast with
developments reflected in a far greater number of cases than was ever submitted
to it before in its history . Furthermore, in the Dutch judicial system, much weight
is placed on the President and Vice-Presidents of the Courts of First Instance due
to the possibility under existing law to approach them for a judgment laying
down "measures of order" in legal disputes of an urgent character without there
being given at once a verdict on the merits. In this sort of proceedings (the so
called kort geding), the President and Vice-Presidents have to show discernment
and a keen sense of legal and social reality. It is not surprising that this form of
judicial service is very much in demand in a cent re like Rotterdam. In addition,
problems of private and public internationallaw inevitably abound at this cross
roads of international interests. Although it is rather for others to say so, Judge
Erades seems to have been very much in place in a Court having to deal with the
uncommonly variegated legal life of a metro polis where aIl imaginable interests
from all over the world are accustomed to meet. But his judicial talents found
recognition outside his horne country as weIl. Twice he acted as Chairman of an
international arbitral body, first in 1967 and 1968 in the Lake Ontario Claims
Tribunal United States and Canada which sat in Ottawa and Washington, D.C.,
on the Gut Dam Case, then from 1968 to 1970 in Turriff's Construction (Sudan)
Ltd. v. Government of the Republic of Sudan, a case argued in the Pe ace Palace
at The Hague.1
Judge Erades' Committee work provides another clue to his personality. In
1959, he was chosen to represent the Netherlands in the Sixth Committee of the
United Nations General Assembly. He served the Union internationale des magis
trats from 1969 to 1971 as a Chairman of its Committee on Questions of Interna
tional Law, and in 1975 was appointed Chairman of the Advisory Committee on
such questions in the Ministry of Foreign Affairs of the Netherlands. I limit my
self to these committees, others being omitted for reasons of space.
Judge Erades also proved to be a scholar of competence. Being a student of
the late Professor B.M. Telders (1903-1945) of Leyden University, he submitted
to hirn a doctoral thesis on The Influence of War on the Validity of Treaties (in
Dutch) which in 1938 earned him the degree of Doctor of Laws.2 In 1949, an
other book followed under the title The Meeting-point of International Law and
Dutch Constitutional Law (in Dutch)3, and in 1961 together with Professor
Wesley L. Gould of Purdue University he published the volume The Relation
Between International Law and Municipal Law in the Netherlands and in the
1. See Stuyt, Survey o[ International Arbitrations 1794-1970 (1972) pp. 452, 490
respectively.
2. Original titIe: De invloed van oorlog op de geldigheid van verdragen (Amsterdam,
1938) XIII and 402 pages.
3. Original titIe: Waar volkenrecht en Nederlands Staatsrecht elkaar raken (Een historisch
juridische studie) (Haarlern, 1949) VIII and 157 pages.
VIII
United States.4 The two latter subjects must have been suggested to hirn by his
judicial practice, but even the former cannot fail to have been of considerable
import in his subsequent life as a judge. Again for reasons of economy, further
references he re to Judge Erades' scientific output must be left aside.5
I now come to the field in which from 1952 until the present I have had the
most elaborate contacts with him: in the founding, management, and direction of
the N etherlands International Law Review. In my own doctoral thesis of 1951,
or rather on the traditionalloose page covered with the most diverse legal pro
positions which the candidate for the doctoral degree offers to entertain, I haJ
inscribed the - not so "legal" - suggestion that "a Dutch journal of international
law would supply a need". Little did I then imagine the success with which these
few words were to be blessed! Judge Erades hirnself in "The Editor-in-Chief Looks
Back Some Twenty-Five Years" 6 recounted some of the early and later history
of the Review. With due respect, he hardly gave any true impression of the huge
amount of work, especially on his part, behind the then twenty-five volumes pro
duced. Dryly he noted: "The handling of the daily work for the editorial side of
the Review was first done by mys elf alone and later with the assistance of some
younger lawyers". But before there could be any question of editorial work, there
was the founding of the Review. This summer, I happened to uncover a file of
correspondence with Judge Erades over the years 1952 to 1964. We corresponded
extensively, in particular during my own tenure at the United Nations Legal Depart
ment (later styled Legal Office) in New York from 1952 to 1958. The principal
topic was always the Review, although we exchanged besides all possible news in
the world of internationallaw we could lay our hands upon. Reading over this
voluminous mass of air mail stationery, I was amused at the thought that once we
had been so young and optimistic as to start an enterprise the outcome of which
could not possibly have been foreseen. Certainly, we immediately enlisted the help
of Dr. (later Professor) Louis de Winter (1911-1972)7, and together we convinced
Professors Kollewijn (1892-1972) and Verzijl to join us in the Board of Editors.
Also, we were in the midst of the tremendous upsurge of a country utterly devas
tated in the war. Yet, one of us at least had to bear the brunt of our correspon
dence with prospective sponsors, authors, and publisher; of reporting back to
colleagues; of repeating time and again requests that went unanswered; of being
patient, diplomatie, and nonetheless of pressing on. Judge Erades did it - and
the others were fortunate, for it is difficult to see who of them might have done
the groundwork in his stead and with equal result. As a matter of fact, Judge
Erades liked the work. On 13 June 1953, at the first meeting of the Editorial
Board, he was made Editor-Secretary, and he was to retain this function for more
than ten years. In this capacity , he virtually managed the Review single-handedly,
4. (Leyden and New York, 1961) 510 pages.
5. See, Bibliography, infra p. 258.
6. Netherlands International Law Review XXVI (1979) pp 1-4.
7. On De Winter, see Erades, "M. de Winter, membre de la redaction", NILR XIX (1972)
pp. 99-101.
IX
and in a letter to me of 20 January 1954 he joyfully exclaimed "ever more to
feel like a manager". Meanwhile, the first issue had appeared: on 12 November
1953, at 11.45 p.m., a parcel containing ten copies was delivered to Judge
Erades' horne by a young maiiman most energetically ringing the doorbell. We may
take this to be the birth of the Review. Specimen copies were se nt around the
world, and the reception was invariably favourable: even in Parliament satisfaction
was expressed!
This is not the place to go into the details of the problems the Board found it
self faced with in the course of the Review's existence. I mention only a few.
First, there was the general policy to be followed: the room to be allotted to
public and private internationallaw, respectively, and to documents; the size per
issue; active planning of future issues or passive waiting for contributions to come
in? acceptance of materials already published elsewhere? and occasional excursions
in the field of comparative law and political science? Second, as with every other
Board of Editors, we had to develop criteria for judging quality and tone of
articles offered for publication, as well as for their editing; and for years we
struggled with the problem of correct texts in foreign languages, a problem for
which foreign legal periodicals published in the mother tongue of their Editors
need not particularly envy uso Third, there were the long-term and day-to-day
questions regarding the management: fmances, the number of subscriptions, the
promotion of the Review, and the like. With regard to two items only from this
catalogue I wish to add a word. As to language and editing: the support ever
since 1973, in all aspects of management, of the T.M.C. Asser Institute for
International Law, The Hague, has relieved us of the translation and revision
problems accompanying foreign language texts and has provided us with a house
style, the existence and implementation of which J udge Erades in 1960 still found
"maddening". And in the matter of comparative law, we recently decided formally
to expand into that field as from 1 January 1982, co-opting two new Editors for
the purpose. Both facts testify to the Board's determination to make as good a jour
nal as is possible under the circumstances. To quote from a last letter of Judge
Erades dated 23 July 1953: "We will, indeed, work and fight for it that our Review
takes an honourable place in society". Thanks to his unstinting dedication, we may
not have fallen too far below our own expectations.
The present volume, offered as a token of friendship and gratitude, was
planned so as to illustrate those particular fields of law - not only international
law! - in which Judge Erades hirnself in the course of his active life took an
interest. We started with national maritime law, thus evoking the Port of Rotter·
dam, and then modulated into public international law, arbitration, the relation·
ship between national and international law, State immunity, private international
law and comparative law. A wide spectrum of subjects, to be sure, but a faithful
reflection of the scope of Judge Erades' mind. And since a tree has many branches,
we found that - as an allusion to Judge Erades' name and his manifold activities -
it might be appropriate to term this volume E Radice Arbor - from the root a
tree came forth.
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