Conditions for recognition and enforcement
Which types of judgment (eg, monetary judgments, mandatory or prohibitory orders) are enforceable in your jurisdiction and which (if any) are explicitly excluded from recognition and enforcement (eg, default judgments, judgments granting punitive damages)?
Judgments rendered in EU member state All types of EU judgment (including but not limited to decrees, orders (interim or permanent), decisions or writs of execution) issued by an EU member state court are enforceable pursuant to the relevant EU regulations.
The Brussels I Regulation (Recast) (1215/2012) applies in civil and commercial matters, excluding revenue, customs or administrative matters. It does not apply to the status or legal capacity of natural persons, matrimonial matters, wills and succession, bankruptcy, social security and arbitration. A judgment given in a member state that orders a penalty payment is enforceable only if the amount of the payment has been finally determined by the court of origin.
Judgments rendered in state that is party to treaty The applicable treaty will describe in general which judgments can be enforced on the parties to the treaty. To be enforceable in the Netherlands, the judgment should also be enforceable in the state of origin.
Judgments rendered in any other state without treaty Article 431 of the Code of Civil Procedure applies only to condemnatory judgments, which are enforceable. Constitutive judgments, declaratory judgments and judgments dismissing a claim fall outside the scope of this chapter. However, according to case law, the judge may attach his or her own conclusion on the law applicable to these judgments and will recognise such judgments if they comply with the conditions set out below.
How are foreign judgments subject to appeal treated?
Judgments rendered in EU member state Judgments rendered in an EU member state are automatically recognised and enforceable in the Netherlands if the Brussels I Regulation (Recast) is applicable. The recognition and enforcement of a judgment rendered in an EU member state can be refused on the application of any interested party. In such cases, the court that hears the appeal may stay the proceedings if an ordinary appeal has been lodged against the judgment in the member state of origin or if the time for such an appeal has not yet expired. In the latter case, the court may specify the time within which such an appeal is to be lodged.
Judgments rendered in state that is party to treaty Some of the treaties to which the Netherlands is party to require that the foreign judgment cannot or can no longer be appealed in the country of origin, and evidence of same.
Judgments rendered in any other state without treaty Other foreign judgments that are still subject to appeal are in principle recognisable and enforceable in the Netherlands, provided that the formal and substantive requirements are fulfilled. The court has a broad discretion in this respect. However, the prevailing opinion on this matter is not unambiguous.
What are the formal and documentary requirements for recognition and enforcement of foreign judgments?
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 below must be met.
What substantive requirements (if any) apply to the recognition and enforcement of foreign judgments? Are enforcing courts in your jurisdiction permitted to review the foreign judgment on the merits?
Judgments rendered in EU member state No enforcement proceedings are necessary for judgments from EU member states and no further exequatur or declaration of enforceability is required. Any interested party (usually the defendant) may initiate proceedings in the member state of enforcement to prevent the recognition and enforcement of the judgment. Recognition and enforcement of the judgment will be refused by a member state court if:
- recognition is manifestly contrary to Dutch public policy;
- the judgment was given in default of appearance, if the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable them to arrange for their defence, unless the defendant failed to commence proceedings to challenge the judgment when it was possible for them to do so;
- the judgment is irreconcilable with a judgment given between the same parties in the Netherlands;
- the judgment is irreconcilable with an earlier judgment given in another member state or in a third state involving the same cause of action and between the same parties, provided that the earlier judgment fulfils the conditions necessary for its recognition in the Netherlands; or
- the judgment conflicts with:
o jurisdiction matters relating to insurance, consumer contracts or individual employment contracts, where the defendant was the insured/beneficiary, injured party, consumer or employee; and
o exclusive jurisdiction under the Brussels I Regulation (Recast).
In the examination of the grounds of jurisdiction, the court will be bound by the findings of fact on which the court or origin based its jurisdiction. However, under no circumstances will a judgment given in a member state be reviewed as to its substance as addressed by the original member state.
Judgments rendered in state that is party to treaty The enforcement leave can be refused by the district court on the grounds mentioned in the relevant treaties. However, the treaties typically include some of the following recognition and enforcement refusal grounds that also follow from Dutch case law:
- the foreign judgment is not based on an internationally recognised ground for jurisdiction;
- recognition and enforcement would violate Dutch public order;
- principles of due process were violated in the proceedings that resulted in the foreign judgment;
- the judgment is not a result of proceedings compatible with Dutch concepts of due process;
- the foreign judgment is incompatible with an earlier foreign judgment between the same parties that is recognisable in the Netherlands;
- the foreign judgment is incompatible with a Dutch judgment between the same parties;
- the foreign judgment is by its terms not, no longer or not yet enforceable; or
- the foreign judgment has already been satisfied.
Under most treaties, it is up to the judgment creditor to establish that the foreign judgment is by its terms enforceable in the country of origin, while the other grounds for refusal may be raised by the Dutch courts ex officio or must be asserted and evidenced by the judgment debtor. The Dutch courts will not review the merits of the foreign judgment.
Judgments rendered in any other state without treaty A foreign judgment is eligible for recognition and enforcement if:
- the competence of the court issuing the judgment is grounded in competency principles that are generally accepted under international standards;
- principles of due process were not violated in the proceedings that resulted in the foreign judgment;
- the foreign judgment was rendered in judicial proceedings that meet the requirements of and include safeguards for the proper administration of justice;
- the recognition of the foreign judgment does not contravene Dutch public order;
- the foreign judgment is reconcilable with any judgment rendered by a court in a matter between the same parties or with any earlier judgment by a foreign court in a matter between those same parties in a dispute regarding the same issue and the same cause, subject to the proviso that such earlier judgment is eligible for recognition in the Netherlands;
- the foreign judgment is by its terms still enforceable; and
- the foreign judgment has not yet been satisfied.
In this event, the Dutch court will render a similar decision as the foreign court and that decision – as a Dutch decision – will be enforceable in the Netherlands (or the court will recognise the foreign judgment in ongoing proceedings). If the requirements are not met, the claim has to be re-litigated as to the substance and the court is permitted to review the foreign judgment on the merits.
What is the limitation period for enforcement of a foreign judgment?
In Gazprombank (2014) the Supreme Court held that expiry of leave to enforce in and under the laws of the country of origin would not prevent recognition and enforcement in the Netherlands of that foreign judgment. In other words, the foreign statute of limitations is of no consequence for the recognition and enforcement in the Netherlands of a foreign judgment.
In any event, the limitation period for a Dutch court to enforce a judgment (including a court leave to enforce a foreign court judgment) is 20 years.
Grounds for refusal
On what grounds can recognition and enforcement be refused?
Recognition and enforcement can be refused if either the formal or substantive requirements as described above are not fulfilled.
Service of process
To what extent does the enforcing court review the service of process in the original foreign proceedings?
If a judgment has been given in default, the recognition or enforcement will be refused if the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable it to arrange a defence, unless the defendant failed to commence proceedings to challenge the judgment when it was possible for it to do so.
What public policy issues are considered in the court’s decision to grant recognition and enforcement? Is there any notable case law in this regard?
A foreign judgment is considered to be in violation of Dutch public policy if fundamental principles of law have been violated. This can be a violation of European Convention on Human Rights rules, mandatory EU law or fundamental principles of due process. The case law on this point results from individual cases. However, the general perception is that a violation of public policy may be only assumed in exceptional situations.
What is the extent of the enforcing court’s power to review the personal and subject-matter jurisdiction of the foreign court that issued the judgment?
The court's power to review the jurisdiction of the foreign courts depends on the origin state of the foreign judgment.
Judgments rendered in an EU member state and Lugano Convention member states are subject to a review of their jurisdiction only in regard to certain specific situations. Recognition and enforcement will be refused only if the judgment conflicts with:
- jurisdiction matters relating to insurance, consumer contracts or individual employment contracts, where the defendant was the insured or beneficiary, injured party, consumer or employee; or
- exclusive jurisdiction provisions under the Brussels I Regulation (Recast) or the Lugano Convention.
In other situations, the member state court’s jurisdiction may not be reviewed. Judgments from a state party to another treaty will mostly have a broader range of review of the jurisdiction of the court of origin. Judgments from states with which the Netherlands has no regulation or treaty will not be enforced by the court if foreign judgment is not based on an internationally recognised ground for jurisdiction. In such cases, the specific basis under which the court of origin has assumed jurisdiction is irrelevant. It is relevant whether the elements of the case would provide jurisdiction on internationally recognised grounds (ie, domicile of the defendant or execution of the service).
Concurrent proceedings and conflicting judgments
How do the courts in your jurisdiction address applications for recognition and enforcement where there are concurrent proceedings (foreign or domestic) or conflicting judgments involving the same parties/dispute?
Concurrent proceedings (foreign or domestic) involving the same matter do not influence the recognition and enforcement of judgments issued in EU member states or Lugano Convention states. Judgments rendered in a state party to a treaty with the Netherlands could contain information on this issue. In general, judgments from other states will not be recognised or enforced if there are concurrent proceedings in the Netherlands which began before the application for recognition and enforcement. The application for recognition and enforcement may be suspended pending the outcome of the other local proceedings.
Conflicting judgments If the judgment is rendered in a foreign state (regardless of the state of origin), the court will refuse recognition or enforcement of the judgment on the application of any interested party if the judgment is irreconcilable with:
- a judgment given between the same parties in the Netherlands; or
- an earlier judgment given in another member state or in a third state involving the same cause of action and between the same parties, provided that the earlier judgment fulfils the conditions necessary for its recognition in the Netherlands.
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