The Netherlands is widely regarded as an arrest-friendly jurisdiction. This is true for the pre-judgment arrest of ships coming to the Dutch ports such as Rotterdam, but also for the pre-judgment attachment of other assets. Arresting vessels in the Netherlands is generally a quick and efficient process. A vessel may be arrested only hours after the application is submitted to court by a Dutch lawyer. Until now, however, the effect of a Dutch ex-parte leave to arrest was limited to the borders of the Dutch jurisdiction.
The introduction of the revised Brussels Regulation appears to have changed all of this and it appears that the reach of a leave to arrest a vessel coming from a Dutch court is now potentially extended to the complete territory of the European Union. This could equally apply to a leave to attach other assets located outside the Netherlands or to a garnishee order where the garnishee is located in another Member State. In its judgment dated 12 March 2015, the Rotterdam court proved to be willing to grant an ex parte leave to Owner of pusher barge “NAVIN 24” to arrest the barge in Germany and/or Austria. In the reasoning of the court it was sufficient for Owners to assert in their application for leave to arrest that it would be impossible or excessively time-consuming to submit a similar application to German or Austrian courts.
The Rotterdam court based its jurisdiction as to the subject-matter on a choice of forum clause in a time-charter. For provisional measures such as an arrest order or a garnishee order to be eligible to be enforced under the revised Brussels Regulation it is a requirement that a court has jurisdiction as to the subject-matter of the proceedings.
The recent judgment by the Rotterdam court is a provisional measure as in Article 2 revised Brussels Regulation, provided the judgement will be served upon the debtor prior to enforcement. The judgment was accompanied by a certificate as in Article 53 revised Brussels Regulation certifying that the judgment is enforceable, which means the local competent authorities responsible for arrests in Germany and Austria will have to enforce the decision to grant leave for a pre-judgment arrest of the vessel, provided all other formalities of the Regulation are observed. No local German or Austrian court will have to grant a leave to enforce (exequatur) under the revised Brussels Regulation.
Under the former Brussels Regulation, enforcement of ‘ex parte’ provisional measures in another Member State than that of the courts ordering the measures did not fall within the scope of Chapter III Brussels Regulation in accordance with case law from the European Court of Justice (Denilauler/Couchet). Enforcement under the former Brussels Regulation of said measures was therefore impossible. The revised Brussels Regulation now allows the enforcement of ‘ex parte’ measures in other Member States, provided the court issuing the measure has jurisdiction as to the subject-matter of the proceedings and provided the measure is served upon the defendant prior to enforcement.
In Dutch law, it had long been an accepted principle that the scope of an attachment or garnishee order could not be extended to assets or garnishees located outside the Netherlands. It seems that, within a European context, this general principle has not only lost its validity at the level of EU Law but also at the Dutch national court level. If other Dutch courts will follow suit, this would mean that the Dutch arrest and attachment friendly jurisdiction will now potentially reach the complete EU.