Enforcement of a foreign judgement in The Netherlands
The Netherlands is a trade nation. Many Dutch companies do business all over the world. It is therefore not uncommon that Dutch based companies get involved in an international lawsuit or in international arbitration. If such international litigation results in a judgment, ordering the Dutch based business to pay its dues, the questions rises: how to enforce this foreign judgment in The Netherlands? Dutch lawyer Hidde Reitsma, owner at law firm AMS attorneys and specialised in the enforcement of a foreign judgement, explains.
Foreign judgments cannot be enforced directly
In The Netherlands, judgments and payment orders of a foreign court or of any court of arbitration cannot be enforced directly. The Dutch Law on Civil Proceedings (art. 985 and further) requires that such decision shall not be enforced other than with permission (leave, which used to be called the “Exequatur”) of the competent Dutch court. Under European Law, however, some titles are deemed to be directly enforceable (the so-called European Enforcement Order, granted in accordance with EU Council Regulation (805/2004).
Easy for Dutch lawyers to have foreign EU-judgment enforced
Judgments given in a EU Member State, however, are subject to the EU Council Regulation No. 44/2001 (the so-called EEX-regulation), and shall be recognised in the other Member States without any special procedure being required. This exception on the above mentioned basic rule now form the vast majority of the cases on recognition and enforcement of foreign judgments in The Netherlands. For the purposes of the EEX-regulation, “jugdment” means: any judgment given by a court or tribunal of a Member State, whatever the judgment may be called, including a decree, order, decision or writ of execution, as well as the determination of costs or expenses by an officer of the court.
Dutch law firms
Under the EEX-regulation, judgments given in EU Member states are declared enforceable in The Netherlands by the President of the Court of the place where the party against whom enforcement is sought is domiciled, or of the place of enforcement. The applicant must provide the President with an original copy of the judgment, accompanied with a certificate of the court of origin, identifying the court and the parties to the judgement. Such petition can be filed on behalf of the claimant by a Dutch attorney / Dutch lawyer.
Enforcement of judgments in The Netherlands
The Lugano Convention, a treaty signed in Lugano in 1988, offers – generally spoken – the same way to have a foreign judgment recognized and enforced as under the EEX-regulation, for judgments given in most European countries that are not EU Member States. Party to this treaty are (among others) Iceland, Norway, Sweden and Switzerland. The recognition proceedings are generally the same as with the proceedings to have a EU judgment declared enforceable. The petition must be filed by Dutch lawyers.
Dutch lawyers filing a petition
In The Netherlands, both Dutch and international arbitral judgments cannot be enforced directly. National (Dutch) arbitral awards shall relatively easily be enforced by ways of a leave given by the President of the Court, declaring the arbitral judgment enforceable. Arbitral judgements given in cases of in International Arbitration can only be recognized and enforced in The Netherlands if a treaty on the recognition and enforcement is applicable. The very most important treaty in this respect is the so-called New York Convention (the Convention on the Recognition and Enforcement of Foreign Arbitral Awards). A request to have an international arbitral judgment recognized and enforceable shall be filed with the Court of the place where the party against whom enforcement is sought is domiciled. The Petition must be filed by a Dutch attorney.
No treaty? Dutch law offers a solution
Even if there is no legal basis for the recognition of a foreign judgment (such as a treaty, or a rule of European Law), the Dutch Law on Civil proceedings offers a pragmatic solution for this “rest category”: the case can (again) be brought before a Dutch Court. Although this is not a way of having a foreign decision recognized under provisional review, but a complete new proceeding (on the merits), the Dutch Court may take into consideration the fact that the parties have been in litigation before. If the court rules that the (Dutch based) defendant was properly summoned to appear in the proceedings, and that the proceedings have been conducted before an independent court, and in accordance with general rules of litigation, the Dutch court could only provisionally review the foreign judgment.
AMS: Dutch law firm based in Amsterdam
The attorneys with AMS have years of experience in international litigation and in all related (either simple or complex) cross-border matters, such as jurisdiction matters, and the enforcement of foreign judgments in The Netherlands.