In a judgment dated 26 September 2014, the Dutch Supreme Court held that in addition to the already existing requirements for recognition of a foreign civil judgment, in the absence of a treaty between the Netherlands and a foreign jurisdiction with respect to the mutual recognition and enforcement of civil judgments, Dutch courts should also take into account whether the foreign judgment is 'formally' enforceable in the jurisdiction from which it originated.
Dutch Supreme Court 26 September 2014 (ECLI:NL:HR:2014:2838)
According to Dutch private international law, a judgment from a court in a foreign jurisdiction is not enforceable in the Netherlands unless such enforceability is allowed under Dutch law or a treaty exists between the Netherlands and the relevant jurisdiction permitting enforcement of civil judgments from that jurisdiction. If no such law or treaty applies, a foreign judgment will not be enforceable in the Netherlands without re-litigation before a Dutch court.
However, until recently, Dutch courts could be expected to enforce a judgment from a court in a foreign jurisdiction (without full re-litigation on the merits of the case), provided that such judgment (i) was a final judgment following valid submissions and was rendered by a court which had established its jurisdiction; (ii) was not rendered in violation of elementary principles of fair trial; and (iii) was not contrary to the public policy of the Netherlands. In its ruling the Dutch Supreme Court added as a fourth requirement that the foreign judgment is not incompatible with either a prior judgment rendered by a Dutch court in a dispute between the same parties, or a prior judgment rendered by a foreign court in a dispute between the same parties, concerning the same subject matter and based on the same cause of action, provided that such prior judgment was also capable of being recognised in the Netherlands. Although not confirmed by the Dutch Supreme Court it seems that this fourth requirement is derived directly from the Brussels I regulation on the recognition and enforcement of judgments in civil and commercial cases.
More importantly, the ruling of the Dutch Supreme Court provides for another requirement for recognition by the Dutch courts, i.e. that the foreign judgment is 'formally' enforceable in the jurisdiction from which it originated. The Dutch Supreme Court, in line with the rules set out in the European Court of Justice case Coursier/Fortis Bank (ECJ, C-267/97), ruled that a foreign judgment is not 'formally' enforceable if the judgment, for instance:
- has been suspended as a result of an appeal having been filed in the relevant foreign jurisdiction;
- has been annulled by a higher court in the relevant foreign jurisdiction; or
- provides a finite term during which it must be enforced and such term has not yet commenced or has already expired.
Maturity of claim, absence of authority to request enforcement or repayment and set-off, however, are not considered restrictions on 'formal' enforceability.
Clients should be aware that a favourable judgment obtained in a jurisdiction which does not have a treaty for the mutual recognition and enforcement of civil judgments with the Netherlands, such as, in the case at hand, the Russian Federation, is likely to be subject to full re-litigation in the Netherlands if one or more of the requirements set out above are not met.