Marnix Leijten, Erin Cronjé and Abdel Zirar, De Brauw Blackstone Westbroek NV

This is an extract from the first edition of GAR’s The Guide to Challenging and Enforcing Arbitration Awards. The whole publication is available here. 

Applicable requirements as to the form of arbitral awards

Applicable legislation as to the form of awards

1 Must an award take any particular form (e.g., in writing, signed, dated, place, the need for reasons, delivery)?

Requirements for the form of arbitral awards are set out in the Dutch Arbitration Act (as amended, effective from 1 January 2015), which forms part of Book 4 of the Dutch Code of Civil Procedure (DCCP).

An award must be in writing and, in principle, be signed by all arbitrators. A qualified electronic signature is also permitted in terms of the DCCP. If an arbitrator refuses to sign the award, the remaining arbitrators must make mention of this in the award. A similar statement must be made if a minority of arbitrators is incapable of signing and it is unlikely that this impediment will be resolved within a reasonable time (for example, in the case of serious illness). An arbitral award that is not signed or that is incorrectly signed is liable to be set aside.

The award must contain the names and addresses of the arbitrators and the parties, and the date and place where the award was rendered. Further, the award must contain the tribunal’s decision, namely an operative part of the award in which each of the claims is granted or denied in whole or in part.

Finally, the award must include reasons for the tribunal’s decision; for every portion of the operative part in which a claim is granted or denied, the body of the award should provide some reasoning for that particular decision. This does not apply in certain arbitrations pertaining to the quality or condition of goods, awards recording a settlement reached by the parties and in all other cases where the parties have agreed in writing that no reasoning for the decision shall be given. Failure to give reasons can result in an award being set aside.

In respect of delivery of the award, the tribunal must ensure that the original of every final, partial final and interim award (or a copy, certified by an arbitrator or a third party as nominated by the parties, such as an arbitral institution) is sent to the parties as soon as possible after it is made. The tribunal may do so by requesting or permitting an arbitral institution to dispatch the award on its behalf, as is typically the practice in an institutional arbitration. The parties may also agree that the tribunal is required to have the original award deposited with the district court registry within whose judicial district the seat of arbitration is situated. In practice, awards are often sent by email to the parties if email was used to communicate between the tribunal and the parties. In such cases, the DCCP permits electronic copies to be treated as original or certified copies of the award.

Applicable procedural law for recourse against an award

Applicable legislation governing recourse against an award

2 Are there provisions governing modification, clarification or correction of an award?

The Dutch Arbitration Act allows for correction of manifest computing or writing errors in the award after it has been delivered. Other manifest errors may also be corrected at the request of one of the parties, as long as the errors can be rectified easily. Similarly, if the names and addresses of the parties and the arbitrators, or the date and place of the arbitral award, are stated incorrectly, or are partly or entirely missing, a party may request the tribunal to correct the error or omission.

The Dutch Arbitration Act does not exclude specific types of awards, and hence final awards, partial awards, additional awards and interim awards may be subject to a request for correction. A tribunal may also interpret an earlier (partial) award, provided the tribunal’s mandate is still in effect; however, corrections in this context must be distinguished from a situation in which an arbitral tribunal has failed to decide on one or more matters that have been submitted to it. In the latter case, either party may request the arbitral tribunal to render an additional award.

An application by a party to a tribunal to correct an award must be made in writing within the time limit agreed by the parties, or if there is no such agreement, no later than three months after the day when the award is dispatched to the parties. The tribunal may, on its own motion, make a correction within the same time constraints. Before a tribunal decides on a request to correct an award or before it corrects an award on its own motion, it must give the parties the opportunity to express their views on the proposed correction.

Appeals from an award

3 May an award be appealed to or set aside by the courts? If so, on what grounds and what procedures? What are the differences between appeals and applications for set-aside?

An arbitral appeal will only be possible if the parties have explicitly agreed to permit appeal, in which case an appeal is usually made to a second tribunal, depending on the parties’ agreement. Dutch courts do not have jurisdiction over appeals of arbitral awards, unless the parties specifically agree to this in an arbitration agreement.

The Dutch Arbitration Act provides for two exhaustively listed forms of recourse against arbitral awards to a court: setting aside and revocation.

Setting aside

The seat of the arbitration must be in the Netherlands for the state courts to have jurisdiction in respect of a setting aside application. An application for setting aside can only be made against a final or partial final arbitral award; an application to set aside an interim award may only be made in conjunction with an application for setting aside a final or partial final arbitral award. The period within which an application must be filed is usually three months from the day the award was delivered or, in the case of an arbitral appeal provision, three months from expiry of the time limit for lodging an appeal.

The setting aside of arbitral awards is limited to two instances. An application for setting aside must be made by a writ of summons addressed to the competent court of appeal of the district of the seat of arbitration. All grounds on which the party relies for the setting aside must be mentioned in the writ of summons, failing which the party will be barred from invoking them at a later stage.

An award may only be set aside on one or more of the following grounds:

  • absence of a valid arbitration agreement;
  • the arbitral tribunal was composed in violation of the applicable rules;
  • the arbitral tribunal has manifestly not complied with its mandate;
  • the award was not signed or did not contain reasons in accordance with the DCCP; or
  • the award, or the manner in which it was made, violates public policy.

After the court of appeal has given a decision, the parties can appeal in cassation to the Supreme Court, unless the parties have agreed to exclude the possibility of cassation.

Revocation

An award may be revoked only if it is wholly or partially based on fraud committed in the arbitration, on forged records that turn out to have been forged after the award was made, or if relevant documents have been withheld by the other party. A claim for revocation must be brought before the court of appeal within three months of one of the grounds for revocation becoming known to the party requesting the revocation.

Applicable procedural law for recognition and enforcement of arbitral awards

Applicable legislation for recognition and enforcement

4 What is the applicable procedural law for recognition and enforcement of an arbitral award in your jurisdiction? Is your jurisdiction party to treaties facilitating recognition and enforcement of arbitral awards?

For the purposes of enforcement, Dutch arbitration law distinguishes between domestic arbitral awards and foreign arbitral awards. Domestic awards are enforced by means of a petition to the preliminary relief judge of the district court in whose judicial district the place of arbitration is located. The application can be filed and decided ex parte. A decision granting leave for enforcement (exequatur) is typically issued within one or two business days. The preliminary relief judge must grant leave if none of the grounds for refusal is present. A decision granting leave for enforcement is not subject to appeal, but a decision denying leave can be appealed. The period within which a domestic arbitral award can be enforced in the Netherlands is limited to 20 years under Dutch law.

Foreign awards require recognition in addition to leave for enforcement. For this purpose, the Dutch Arbitration Act distinguishes between awards recognised and enforced pursuant to an enforcement treaty, and awards recognised and enforced without the application of a treaty.

Recognition and enforcement based on a treaty

In respect of enforcement with an applicable treaty, the proceedings commence with the filing of a petition for leave to recognise and enforce a foreign award at the court of appeal. The application must be filed at the court of appeal in the district where enforcement is sought (i.e., in the district where an asset of the award debtor is situated or where the award debtor is domiciled). The court of appeal must order a hearing before it decides on the request. The parties against whom enforcement is sought must be summoned for the hearing by the party requesting enforcement by formal service of the court’s decision ordering a hearing. The court of appeal records its decision in a separate exequatur judgment that must contain reasoning. Unless the relevant enforcement treaty provides otherwise, both the applicant and the respondent can appeal to the Supreme Court within three months of the day of the decision. Such an appeal does not suspend the enforceability of the court of appeal’s exequatur, unless that court decided otherwise.

The Netherlands is a party to both the New York Convention and the ICSID Convention. In the case of New York Convention awards, the procedure is largely the same as the procedure described above. A petition for leave to recognise and enforce an ICSID award must be made to the preliminary relief judge of the District Court of The Hague, which is the designated competent court for this procedure in the Netherlands, in accordance with the ICSID Convention.

Recognition and enforcement without a treaty

If no applicable treaty exists for the recognition and enforcement of a foreign award, or if a treaty is applicable but permits a party to seek recognition and enforcement pursuant to the law of the state where the enforcement is sought, a party can apply for recognition and enforcement of the award based exclusively on Dutch law, in accordance with the Dutch Arbitration Act and DCCP. The proceedings are largely identical to those for an application based on a treaty.

The New York Convention

5 Is the state a party to the 1958 New York Convention? If yes, what is the date of entry into force of the Convention? Was there any reservation made under Article I(3) of the Convention?

The Netherlands has signed and ratified the New York Convention, effective on 24 April 1964. The only reservation made is the reciprocity reservation, in terms of which only awards from other contracting states will be enforced as per the Convention’s terms.

Recognition proceedings

Competent court

6 Which court has jurisdiction over an application for recognition and enforcement of arbitral awards?

A domestic arbitral award is fit to be recognised and enforced by the district court within whose judicial district the seat of the arbitration is located. The competent court in respect of foreign awards is the court of appeal in the district where enforcement is sought.

Jurisdictional issues

7 What are the requirements for the court to have jurisdiction over an application for recognition and enforcement of arbitral awards? Must the applicant identify assets within the jurisdiction of the court that will be the subject of enforcement for the purpose of recognition proceedings?

The competent court in the district within which the seat of arbitration is located will have jurisdiction in respect of enforcement of domestic awards.

Dutch courts have a general jurisdiction to enforce foreign arbitral awards. An application for leave to enforce a foreign award in the Netherlands is, by its nature, considered to be sufficiently closely connected to the Dutch legal order, and the presence of assets in the state is not specifically required. This certainty of jurisdiction, coupled with liberal rules on levying ex parte prejudgment attachments and the fact that many companies and institutions are structured through Dutch entities, makes the Netherlands an attractive jurisdiction for the enforcement of arbitral awards.

Form of the recognition proceedings

8 Are the recognition proceedings in your jurisdiction adversarial or ex parte?

A Dutch domestic arbitral award is enforced by proceedings before a single judge in the competent district court, which are typically handled on an ex parte basis. Enforcement proceedings of foreign arbitral awards are conducted in the first instance by the competent court of appeal. There is usually one round of written submissions and both parties are given an opportunity to address the court at the hearing. Please refer also to question 4.

Form of application and required documentation

9 What documentation is required to obtain the recognition of an arbitral award?

The DCCP requires at least an authenticated copy of the award to be produced to the relevant court for enforcement of domestic awards. For foreign arbitral awards, the DCCP and the New York Convention require the original arbitration agreement and the original arbitral award, or duly certified copies of these documents, to be produced to the relevant court. In respect of ICSID awards, an authentic copy of the award signed by the Secretary General of ICSID must be furnished.

Translation of required documentation

10 If the required documentation is drafted in a language other than the official language of your jurisdiction, is it necessary to submit a translation with an application to obtain recognition of an arbitral award? If yes, in what form must the translation be?

In practice, Dutch courts will accept awards rendered in English and possibly in French or German. Although the New York Convention requires translation of an award into the official language of the country in which enforcement of an award is sought, Dutch courts usually adopt a pragmatic approach in these cases. There are court decisions finding that the translation requirement is not to be enforced if the arbitral award is in a language understood by both the party defending against the request for leave and the court. There is also no requirement that an ICSID award be translated into Dutch.

Other practical requirements

11 What are the other practical requirements relating to recognition and enforcement of arbitral awards?

There are no additional costs beyond normal legal costs associated with any other court application, such as counsel’s fees, disbursements and court fees.

Recognition of interim or partial awards

12 Do courts recognise and enforce partial or interim awards?

An award deciding on interim measures, whether qualifying as an interim award or as a partial final award, is in principle enforceable in the same manner as an arbitral award on the merits.

Grounds for refusing recognition of an award

13 What are the grounds on which an award may be refused recognition? Are the grounds applied by the courts different from the ones provided under Article V of the Convention?

In the absence of an applicable treaty concerning recognition and enforcement, the grounds for refusal as contained in the Dutch Arbitration Act apply. The grounds closely resemble those in the New York Convention:

  • there is no valid arbitration agreement under the law applicable to the arbitration agreement;
  • the tribunal was constituted in violation of the applicable rules;
  • the tribunal violated its mandate;
  • the award is open to appeal to another arbitral tribunal or court in the country where the award was made;
  • the arbitral award has been set aside by a competent authority of the country where the award was made; or
  • recognition or enforcement would be contrary to public policy.

Effect of a decision recognising an award

14 What is the effect of a decision recognising an award in your jurisdiction? Is it immediately enforceable? What challenges are available against a decision recognising an arbitral award in your jurisdiction?

Both domestic arbitral awards and foreign awards only become enforceable after leave for enforcement (exequatur) has been granted by the relevant court (see question 4). Once exequatur has been granted, the arbitral award can be enforced in the Netherlands in the same manner as an enforceable state court judgment.

Decisions refusing to recognise an award

15 What challenges are available against a decision refusing to recognise an arbitral award in your jurisdiction?

In respect of domestic arbitral awards and where there is no applicable treaty on recognition and enforcement, the DCCP provides for an appeal process only if recognition is refused. If this is the case, the party may apply to the competent court of appeal, and if appeal is again unsuccessful, a cassation appeal can be filed with the Supreme Court.

In respect of recognition sought on the basis of the New York Convention, the Dutch Supreme Court has ruled that there is no right of appeal against a decision granting leave to enforce an award in terms of the Convention. In the case of a foreign award where the New York Convention is not applicable, and unless the relevant enforcement treaty provides otherwise, both the applicant and the respondent can appeal to the Supreme Court following a decision either refusing recognition or granting leave for enforcement.

Stay of recognition or enforcement proceedings pending annulment proceedings

16 Will the courts adjourn the recognition or enforcement proceedings pending the outcome of annulment proceedings at the seat of the arbitration? What trends, if any, are suggested by recent decisions? What are the factors considered by courts to adjourn recognition or enforcement?

The enforcement of an arbitral award is not automatically suspended by an application for the setting aside of the arbitral award. In terms of the Dutch Arbitration Act, upon request by a party, and if there are good grounds for doing so, the court may suspend enforcement of the award until a final decision on the application for setting aside has been made.

Similarly in respect of foreign awards for which there is no applicable enforcement treaty, the court of appeal may suspend its decision on the recognition and enforcement if proceedings to set aside the award have been initiated in the state where the award was rendered. Dutch courts also abide by the provisions of applicable treaties in this regard, for example Article VI of the New York Convention, which provides for a court to suspend recognition or enforcement proceedings if a setting aside application has been made before the court at the seat of arbitration.

When reviewing a request for suspension of enforcement, the court generally considers two cumulative requirements that must be met for the request to succeed. First, it must be probable that the award will be set aside. Second, the interest of the award debtor to delay enforcement must outweigh the interest of the award creditor in proceeding with the enforcement.

Security

17 If the courts adjourn the recognition or enforcement proceedings pending the annulment proceedings, will the defendant to the recognition or enforcement proceedings be ordered to post security? What are the factors considered by courts to order security? Based on recent case law, what are the form and amount of the security to be posted by the party resisting enforcement?

In the event that recognition and enforcement proceedings are suspended pending the outcome of an application for setting aside, the Dutch Arbitration Act permits the court to order the party seeking suspension to provide security. Conversely, if the request for suspension is denied, the court may order the party seeking enforcement to provide security.

In nuanced cases, the Dutch courts have been willing to consider suspending their decisions on recognition and enforcement subject to the provision of suitable security; however, in practice, security is rarely sought in these situations and so there are no established factors for consideration.

Recognition or enforcement of an award set aside at the seat

18 Is it possible to obtain the recognition and enforcement of an award that has been fully or partly set aside at the seat of the arbitration? If an award is set aside after the decision recognising the award has been issued, what challenges are available against this decision?

An award that was set aside at the seat of arbitration may still be recognised and enforced in the Netherlands. Although the Dutch Arbitration Act provides that an award that has been set aside at the seat is a ground for refusing recognition and enforcement, the Supreme Court has indicated that this does not automatically preclude Dutch courts from recognising an award. An award may be recognised in the Netherlands in exceptional circumstances if, for example, the award has been set aside on grounds that are not grounds for refusal of recognition as set out in the Dutch Arbitration Act and that are not internationally accepted.

The approach of the courts is similar in New York Convention cases. The Dutch courts are required to grant leave for the recognition and enforcement of a foreign arbitral award under the Convention, unless a ground for refusal as provided in Article V(1) applies. However, even if such a ground for refusal applies, the court nevertheless has a certain discretion to grant leave for recognition and enforcement, which may be applied in special circumstances. A special circumstance exists if the award was set aside in foreign proceedings on grounds that do not match with those in Article V, (1)(a) to (1)(d) of the New York Convention, and grounds that are not generally accepted according to international standards. A special circumstance also exists if the decision rendered in the foreign setting aside proceedings cannot be recognised in the Netherlands, on the grounds that one or more of the requirements under Dutch private international law for the recognition and enforcement of a foreign decision have not been fulfilled.

The party seeking recognition and enforcement has the burden of asserting and proving facts and circumstances that justify granting leave for recognition and enforcement despite a ground for refusal being applicable.

Service

Service in your jurisdiction

19 What is the applicable procedure for service of extrajudicial and judicial documents to a defendant in your jurisdiction?

Service of any applications, writs of summons and judgments or exequaturs are ordinarily effected through the Dutch bailiff, instructed by the applicant or award creditor as the case may be. Service is usually effected at the respondent’s domicile, which may also be the offices of the respondent’s counsel if nominated. However, in light of some recognition and enforcement proceedings being ex parte proceedings, service in this manner will not always be required.

Service out of your jurisdiction

20 What is the applicable procedure for service of extrajudicial and judicial documents to a defendant out of your jurisdiction?

The 1965 Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters, and Regulation (EC) No. 393/2007 regulate service of judicial documents in the EU Member States. If service is to be effected in a state that is not a member of the European Union or not a signatory to the 1965 Convention, service is regulated by the DCCP. In such a case, the court bailiff must send the document by registered post to the foreign address, and present the document to the office of the public prosecutor in the relevant district of the competent court. The public prosecutor must provide the document to the Dutch Ministry of Foreign Affairs, which must then give notice to the foreign respondent.

Identification of assets

Asset databases

21 Are there any databases or publicly available registers allowing the identification of an award debtor’s assets within your jurisdiction?

A number of databases and registers allow for the identification of assets in the Netherlands, including: the land registry (Kadaster), which facilitates a database of real estate and includes information about ownership, mortgages, value of properties and legal attachments; the vessel register and database, which is supported on the Kadaster website; the aircraft register; the patent register; the Benelux Office of Intellectual Property, including information on trademarks; and the trade register (KvK), which includes content on corporate entities registered in the Netherlands, such as directorship, financial reports and shareholding.

In addition, under new European legislation, the Netherlands is in the process of implementing a UBO register, identifying the ultimate beneficial owner of legal entities.

Information available through judicial proceedings

22 Are there any proceedings allowing for the disclosure of information about an award debtor within your jurisdiction?

Dutch law does not provide for either specific legal proceedings in respect of asset disclosure, or a specific obligation for an award debtor to disclose its assets.

Enforcement proceedings

Availability of interim measures

23 Are interim measures against assets available in your jurisdiction? May award creditors apply such interim measures against assets owned by a sovereign state?

An award creditor may obtain a prejudgment attachment against assets of an award debtor pending, or prior to commencing, exequatur proceedings. The purpose of such an attachment is to secure assets sought to be recovered upon enforcement, which are at risk of being disposed of or alienated by an award debtor before enforcement. In fact the attachment regime in the Netherlands is very liberal and award creditor friendly.

A prejudgment attachment may be obtained against assets of a sovereign state that are not protected by sovereign immunity from enforcement measures. As discussed in questions 32 and 34, the Netherlands recognises parts of the 2004 UN Convention on Jurisdictional Immunities of States and their Property as a reflection of customary international law that governs the question of which assets may be subjected to post-judgment attachment as well as prejudgment attachment.

Procedure for interim measures

24 What is the procedure to apply interim measures against assets in your jurisdiction? Is it a requirement to obtain prior court authorisation before applying interim measures? If yes, are such proceedings ex parte?

In order to levy prejudgment attachment against assets of an award debtor, an award creditor must obtain leave for attachment from the preliminary relief judge of the district court in the district where the assets are located or where the award debtor is domiciled. The petition for leave to attach assets may be done ex parte and the leave is customarily granted within a matter of days. After obtaining the leave to attach assets, the attachment is effected through instruction to a bailiff, who will levy the attachment through service of an attachment order.

Interim measures against immovable property

25 What is the procedure for interim measures against immovable property within your jurisdiction?

Please refer to questions 23, 24 and 29, with the exception that sale of the property may not be permitted in the prejudgment process prior to a final decision on enforcement proceedings.

Interim measures against movable property

26 What is the procedure for interim measures against movable property within your jurisdiction?

Please refer to questions 23, 24 and 30, with the exception that sale of the property may not be permitted in the prejudgment process prior to a final decision on enforcement proceedings.

Interim measures against intangible property

27 What is the procedure for interim measures against intangible property within your jurisdiction?

The procedure for movable property also applies to intangible property – see question 26.

Attachment proceedings

28 What is the procedure to attach assets in your jurisdiction? Is it a requirement to obtain prior court authorisation before attaching assets? If yes, are such proceedings ex parte?

Before enforcing an arbitral award through attachment of assets, an award creditor must obtain an exequatur from the competent Dutch court, as discussed in question 4. After obtaining an exequatur, attachments may be levied against the award debtor’s assets through a direct instruction to a court bailiff in accordance with the DCCP.

Attachment against immovable property

29 What is the procedure for enforcement measures against immovable property within your jurisdiction?

The procedures for enforcement against immovable property are set out in the DCCP. Prior to attachment of immovable property belonging to an award debtor, an award creditor must instruct a bailiff to serve a payment order on the award debtor, including a summons for the debtor to complete payment under the award within two days. After this term, attachment may be levied by the bailiff through an attachment order that is entered on the public registry for immovable property. In the event that the immovable property is under mortgage, the award debtor must inform the mortgage holder of the attachment. The immovable property is sold at auction by a notary public who is designated by the award creditor (either in the attachment order served on the award debtor, or in a later order served on the award debtor). An auction of immovable property must be announced on the internet at least 30 days before the date of the auction. The designated notary public will take payment for the immovable property, pay the sums due to the award creditor, and return any residual funds to the award debtor.

Attachment against movable property

30 What is the procedure for enforcement measures against movable property within your jurisdiction?

For movable property that is required by law to be registered in public registries (see question 21), the procedure is the same as with immovable property, although the time limit for complying with the bailiff’s payment order is 24 hours instead of two days, and the time limit for notice of the sale of the immovable property varies (between two weeks and six weeks), depending on the type of property.

For other movable property (i.e., that is not required by law to be registered in a public registry), attachment is effected through direct instruction of a bailiff who will, after serving a payment order with a summons to pay the awarded sum within two days, seize the property and sell it or, if the property is liquid, pay out to the award creditor.

Selling off registered shares in a (public or private) company requires obtaining prior leave from the district court in the district where the company is located. The district court will summon the bailiff, the award creditor, the award debtor, the company and any interested party (such as other parties with an attachment on the shares) before issuing a decision on the request for leave.

Attachment against intangible property

31 What is the procedure for enforcement measures against intangible property within your jurisdiction?

The procedure for movable property also applies to intangible property – see question 30.

Enforcement against foreign states

Applicable law

32 Are there any rules in your jurisdiction that specifically govern recognition and enforcement of arbitral awards against foreign states?

When enforcing an investment arbitration award against a state in the Netherlands, Dutch law on immunity from execution applies. Although the Netherlands is not a signatory, the Supreme Court has endorsed certain parts of the 2004 UN Convention on Jurisdictional Immunities of States and Their Property as reflecting customary international law, in particular Articles 19 and 21 thereof, which set out exceptions to the general rule of sovereign immunity in respect of post-judgment attachments. However, the Supreme Court has indicated that Article 18 of the Convention, which contains strict prejudgment attachment provisions, is not reflective of customary international law. Accordingly, prejudgment attachments would also be permissible in accordance with the exceptions to immunity set out in Articles 19 and 21, as discussed in question 34.

Service of documents to a foreign state

33 What is the applicable procedure for service of extrajudicial and judicial documents to a foreign state?

For signatory states, the 1972 European Convention on State Immunity will apply to service on foreign states. Judicial process must be provided to the Ministry of Foreign Affairs of the respondent state, which then distributes it to the competent authority for the foreign state.

If the foreign state is not a signatory to the 1972 Convention, service is effected in accordance with the DCCP, in the same manner as that for non-Member States set out in question 20. For the purposes of service on a foreign state, the domicile is usually considered to be the office of the Minister of Foreign Affairs in that state’s capital city.

Immunity from enforcement

34 Are assets belonging to a foreign state immune from enforcement in your jurisdiction? If yes, are there exceptions to such immunity?

Following international customary law and Dutch law on sovereign immunity as referred to in question 32, the general principle is that the property of foreign states is not susceptible to attachment and execution. Under the terms of Article 19 of the 2004 Convention, exceptions to this immunity exist if:

  • the foreign state has expressly consented to enforcement measures;
  • the foreign state has designated or reserved property to satisfy the claim; or
  • it has been established that the property is used or intended to be used by the state for purposes other than government, non-commercial purposes.

The burden of proof with respect to suitability for attachment of the property in the third category rests on the award creditor seeking attachment.

Waiver of immunity from enforcement

35 Is it possible for a foreign state to waive immunity from enforcement in your jurisdiction? If yes, what are the requirements of such waiver?

It is possible for a foreign state to waive immunity from enforcement. The Dutch Supreme Court has confirmed that a waiver of immunity must be explicit and specific; it cannot be implied from the provisions of the relevant arbitration agreement. See also question 34.

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