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    Recognition and enforcement of non-EU courts' judgements in the Netherlands when there is a governing convention

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  • Under Dutch law, enforcement of foreign judgements is only possible where a convention between the Netherlands and the foreign country provides for it or if the judgement was rendered by a court in a Member State of the EU.  Otherwise, the claimant must relitigate his case in the Netherlands in order to obtain a binding and enforceable judgement. The present article creates an overview of the legal procedure of the recognition and enforcement of a judgement rendered outside the EU in case where there is a governing convention.

    1. Which country's judgement can be enforced?

    Judgments from non-EU countries (the 'third countries') can only be enforced in the Netherlands as such if there is a convention between the Netherlands and the foreign country concerned.The following table presents the third countries whose judgement can be enforced in the Netherlands and the treaties under which such enforcement is possible.

    Name of the Treaty

    Name of the third countries bound by the treaty[1]

    2007 Lugano Convention on jurisdiction and enforcement of judgments in civil and commercial matters (the 'Lugano Convention')

    Switzerland, Norway, Iceland and Denmark

    2005 Hague Convention on Choice of Court Agreements (the 'Hague Convection')

    Singapore, Montenegro and Mexico

    1980 Convention on International Access to Justice (the '1980 Convention')

    Albania, Belarus, Bosnia and Herzegovina, Brazil, Costa Rica, Kazakhstan, Montenegro, North Macedonia, Serbia and Switzerland

    Convention on the Contract for the International Carriage of Goods By Road (the 'International Carriage Convention')

    Albania, Armenia, Azerbaijan, Belarus, Bosnia and Herzegovina, Georgia, Iran, Jordan, Kazakhstan, Kyrgyzstan, Lebanon, Mongolia, Montenegro, Morocco, North Macedonia, Norway, Republic of Moldova, Serbia, Switzerland, Syrian Arab Republic, Tajikistan, Tunisia, Turkey, Turkmenistan, Ukraine, Uzbekistan

    1971 Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters (the '1971 Convention')

    Kuwait and Albania

    Agreement between the Kingdom of the Netherlands and the Republic of Suriname regarding the mutual recognition and enforcement of judicial decisions and authentic instruments in civil matters (the 'Agreement')

    Republic of Suriname

    2. Which judgement can be enforced?

    The recognition and enforcement procedure depends not only on the country in which the judgement was rendered but also on the nature of the legal dispute between the parties. For instance, under the Lugano Convention and the 1971 Convention only judgements rendered in civil and commercial cases (with certain exceptions such as bankruptcy, social security, status and legal capacity of persons etc.) can be enforced.

    The Hague Convention only covers the enforcement of judgements rendered by courts designated in exclusive choice of court agreements concluded in civil or commercial matters. The 1980 Convention is applicable to the enforcement of orders for payment of costs and expenses rendered in civil or commercial proceedings. The International Carriage Convention only provides for the enforcement of judgements rendered in connection with carriages.

    Most treaties define what judgement they cover. For example, while according to the Lugano Convention a 'judgement' includes any decision on the determination of costs or expenses by an officer of the court, the Hague Convention recognizes a decision regarding costs or expenses as a judgement only if the determination relates to the decision on merits. Irrespective of how a judgement is defined in the relevant convention, in the Netherlands only those decisions can be enforced which are also enforceable in the state of origin.

    3. How to recognize and enforce the judgement in the Netherlands

    Although the procedure of recognition and enforcement (including the formal and documentary requirements) varies on the basis of the applicable convention, in the Netherlands a foreign judgement rendered in a third country can be enforced only after a court's leave for enforcement is obtained in an exequatur procedure.

    If the governing convention does not provide otherwise, the exequatur procedure is initiated by the interested party submitting a petition to the competent District Court accompanied with: (i) an authentic copy of the judgement; (ii) evidence of formal enforceability in the country of origin (e.g. a certificate in case of the Lugano Convention); and (iii) an official translation and legalization of the documents if it is required by the court. In case of the 1971 Convention, the applicant also must submit (i) the original or certified copy of documents that certify that the summon was duly served on the defaulting party; and (ii) evidence verifying that the decision was given by a court which had jurisdiction based on the 1971 Convention's provisions.

    In principle, the Dutch court cannot decide on the enforceability of a judgement without hearing the party against whom the enforcement was sought. However, under the Lugano Convention and the 1980 Convention, the other party is not entitled to make any submission on the application as the court is obligated to decide on the enforceability solely on the basis of the formalities.

    Unlike in the procedure regulated under the Lugano Convention, in general the court is entitled to – ex officio or on the basis of the other party's submission – consider substantive requirements beside the formal ones mentioned above. While the legal basis for refusing to grant a leave for enforcement depends on the provisions of the applicable convention, the court can typically refuse the enforcement in the following cases:

            i.            the foreign judgement is not based on an internationally recognized ground for jurisdiction;

           ii.            recognition and enforcement would violate Dutch public order;

         iii.            principles of due process were violated in the proceedings that resulted in the foreign judgement (e.g. the decision was obtained by fraud in the procedural sense);

         iv.            the judgement is not a result of proceedings compatible with Dutch concepts of due process;

           v.            the judgement was given in default of appearance and the defendant was not served with the document which instituted the proceedings in sufficient time and in a way that would have enabled him to arrange for his defense;

         vi.            the foreign judgement is incompatible with an earlier foreign judgement between the same parties that is recognizable in the Netherlands;

       vii.            the foreign judgement is incompatible with a Dutch judgement between the same parties;

     viii.            the foreign judgement is by its terms not, no longer or not yet enforceable;

         ix.            the foreign judgement has already been satisfied; or

           x.            in case of the Hague Convention, the court agreement was null and void or one of the concluding party lacked the capacity to conclude such agreement.

    Even if the Dutch Court is entitled to consider substantive requirements during the exequatur procedure, the court cannot review the merits of the foreign judgement and is bound by the findings of facts on which the court of origin based its judgement.

    4. How to challenge the enforcement of the judgement

    Both parties may lodge an appeal against the court's decision within one month after the decision on granting an enforcement leave was taken. However, if the judgement is enforceable under the Lugano Convention, only the person against whom the enforcement was sought can challenge the court's decision. If domiciled in the Netherlands, she can only do so within one month from the date the decision was rendered. Otherwise, the time limit is two months.

    This procedure only enables the parties to challenge the enforceability of the foreign judgement. In addition, the parties are entitled to initiate proceedings under Dutch law regarding the enforcement of the foreign judgment, just like they can regarding the enforcement of a Dutch judgment. Such dispute may concern, for instance, the validity of an attachment, the question of who owns the attached assets, the abuse of the executor's power, or to the significance and scope of the enforceable document. Such disputes are usually dealt with in preliminary relief proceedings by the relief judge of a district court or in summary proceedings.

    In both procedures the competent court can: (i) suspend wholly or partly the enforcement proceedings; (ii) demand sufficient security in order not to suspend the enforcement; (iii) limit the enforcement proceeding to protective measures.

    This article is written to provide general information and does not constitute legal advice.

    [1] The table was prepared based on the data available on 24 May 2019.