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Recognition and enforcement procedure
What is the formal procedure for seeking recognition and enforcement of a foreign judgment?
Judgments rendered in EU member state No enforcement proceedings are necessary for judgments from EU member states and no further enforcement order (or 'exequatur') or declaration of enforceability is required. Such an enforceable judgment carries with it the power to use any protective measures that exist under the law of the addressed member state.
A party which wishes to invoke a judgment issued in another member state must provide the court or authority:
- a copy of the judgment which satisfies the conditions necessary to establish its authenticity (eg, a certified copy); and
- a certificate issued by the state of origin that certifies enforceability and contains formal details of the judgment (eg, information on recoverable costs of the proceedings and the calculation of interest).
If the judgment grants a provisional or protective measure and this was ordered without the defendant being summoned to appear, the claimant must also submit proof of service of the judgment. The competent enforcement authority can, where necessary, require the enforcing party to provide a translation or a transliteration of the contents of the certificate if it is unable to proceed without a translation. The competent authority in the Netherlands is the bailiff.
Judgments rendered in state that is party to treaty The applicable treaty provides the formal and documentary requirements for recognition and enforcement of the judgments. For example, the Lugano Convention follows the Brussels I Regulation and states that the claimant must provide the court or authority with a copy of the judgment that satisfies the conditions necessary to establish its authenticity (eg, a certified copy) in order to obtain recognition. In order to enforce judgments rendered by the courts of the Lugano Convention states, the claimant must apply for a declaration of enforceability.
Most treaties that discuss the enforcement of a foreign judgment in the Netherlands reference Dutch domestic law (the Code of Civil Procedure) enforcement procedure (ie, enforcement by means of exequatur). The application for an enforcement order must be submitted by petition. The request should be accompanied by a complete and authenticated copy of the foreign judgment and evidence of formal enforceability in the country of origin. The court may require those documents to be authenticated and translated into Dutch by a sworn translator. Some treaties require that the party seeking recognition and enforcement provide evidence of proper notification to the defendant of the initiation of the foreign proceedings. In addition, the party seeking recognition and enforcement in the Netherlands must provide evidence that the counterparty was properly notified of the request to recognise and enforce the foreign judgment.
Judgments rendered in any other state without treaty The procedure in Article 431 of the Code of Civil Procedure does not formally entail recognition or enforcement of a foreign state court judgment. However, in practice it gives binding effect to a foreign court judgment in the Netherlands. The procedure can be used to initiate new simplified proceedings in the Netherlands, seeking the same outcome as the foreign court judgment without review of the merits of the foreign judgment. The proceedings are initiated by summons. A complete and authenticated copy of the foreign judgment and a legal opinion confirming enforceability of the judgment in the country of origin are usually sufficient in terms of evidence. The court may require those documents to be legalised and translated into Dutch by a sworn translator.
However, the recognition of a foreign state court judgment can also be invoked during ongoing proceedings to substantiate a claim or defence. In order to be recognised, the substantive requirements set out above must be met.
What is the typical timeframe for the proceedings to grant recognition and enforcement?
There is no typical timeframe in the Netherlands for the proceedings to grant recognition and enforcement. A judgment rendered in an EU member state can be recognised and enforced without any further proceedings needed. In the event that any interested party initiates proceedings to prevent recognition and enforcement of a foreign judgment, the court shall decide on the application for refusal of recognition and enforcement without delay. In the event that an enforcement order (or 'exequatur') procedure is conducted, the decision on the request for enforcement must be given swiftly, although a speedy decision must not frustrate the rights of the defendant to a fair hearing. Usually, procedures will be finalised within a few months.
In the event that the recognition and enforcement procedure must be re-litigated, the timeframe largely depends on the state of origin of the judgment, the documents provided and the arguments raised by the defendant. It could take up to 24 months before a final judgment is given.
What fees apply to applications for recognition and enforcement of foreign judgments?
The applicant is charged a court fee. The fee varies from a few hundred euros for claims with an unspecified amount to a few thousand euros for claims with a specified amount. The lawyer's fees will usually be calculated on an hourly basis although alternative fee arrangements are allowed to a certain extent as well. In the event that the claim is dismissed, the losing party will be ordered to pay the costs of the proceedings. However, these costs are relatively low and do not include the actual costs incurred by the defendant's lawyers.
Must the applicant for recognition and enforcement provide security for costs?
Judgments rendered in EU member state In the event of an application for refusal of enforcement of a judgment rendered in an EU member state, the court may, on the application of the party against whom enforcement is sought, make enforcement conditional on the provision of such security.
Judgments rendered in state that is party to treaty According to the Code of Civil Procedure, if the claimant seeks recognition and enforcement of a judgment rendered in a state party to a treaty the court can declare the decision provisionally enforceable under the condition that security is provided (eg, in the event the judgment in the state of origin is appealed against), except in the event the specific treaty states differently.
Judgments rendered in any other state without treaty A claimant can be required to provide security for costs in advance of costs being decided on the demand of the defendant if the claimant is a foreign party and the claim must be re-litigated before enforcement can take place. However, in practice this right is rarely used because of the large number of exceptions, international treaties prohibiting security for costs and the EU framework.
Are decisions on recognition and enforcement subject to appeal?
Yes. A decision in enforcement proceedings can be appealed to the Court of Appeal, and a Court of Appeal decision can be contested before the Supreme Court.
How does the enforcing court address other costs issues arising in relation to the foreign judgment (eg, calculation of interest, exchange rates)?
In an exequatur procedure no conversion of foreign currencies is made. Interest depends on what is determined in the foreign judgment, but it may be granted.
Enforcement against third parties
To what extent can the courts enforce a foreign judgment against third parties?
In general, a foreign judgment is directly enforceable only against the parties to which it is addressed. However, third parties may be affected by judgments in a few rare cases. According to Schuring/Sweelinck, the enforcement of a judgment against one of the parties mentioned in the judgment can also have consequences for third parties within the limits imposed by the formulation of the order and by the rules prescribed by law. For example, the enforcement of an eviction order against the owner can also be used against people who were not party to the proceedings, but are present at the premises.
Partial recognition and enforcement
Can the courts grant partial recognition and enforcement of foreign judgments?
Yes, insofar as the claims covered by the judgment can be separated.
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