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The Netherlands The Netherlands by Antonius I.M. van Mierlo, Professor of Law Erasmus University Rotterdam Department of Civil Law & Civil Procedure Law Attorney at Law, NautaDutilh Weena 750 3014 DA Rotterdam Telephone: +31 10 22 40 321 Fax: +31 10 22 40 006 and Bo Ra D. Hoebeke,* Attorney at Law NautaDutilh Weena 750 3014 DA Rotterdam Telephone: +31 10 22 40 340 Fax: +31 10 22 40 056 * The authors gratefully acknowledge the most valuable assistance of Ms. Kate Lalor, senior associate at NautaDutilh N.V., Rotterdam. NET-1 (Rel. 29-2010) The Netherlands1 General Introduction The following is an outline of various aspects relating to the enforcement of a foreign money judgment in the Kingdom of The Netherlands (hereinafter referred to as “The Netherlands”).2 The observations set forth below relate only to The Netherlands domestic law, including directly applicable European regulations,3 and to provisions of directly applicable treaties to which The Netherlands is a party. The most important provisions relating to arrangements between The Netherlands and other countries with regard to enforcement are laid down in the following European regulations: — the European Council Regulation (EC) number 44/2001 of December 22, 2000 on jurisdiction and the enforcement of judgments in civil and commercial matters (hereinafter referred to as “EEX-Regulation”),4 also referred to as the Brussel I-Regulation, which entered into force on March 1, 2002 and replaced the “Brussels Convention” (dated September 27, 1968),5 1 Although the information provided in this report is believed to be accurate and reliable, the reader should be aware that it is of an introductory nature only. The authors do not assume any, and disclaim any, legal responsibility for damage, loss, or any other consequence that may occur in connection with the use of this report. Also, please note that this report only sees to the enforcement of foreign money judgments with regard to civil and commercial matters. 2 In principle, in order to enforce a foreign judgment in The Netherlands it is necessary to seek the assistance of a qualified attorney licensed to practice as “advocaat” in The Netherlands. 3 In principle, the European Regulations are directly applicable within the jurisdiction of the Member States of the European Union. To date, the Member States of the European Union are Austria, Belgium, Bularia, Cyprus, Czech Republic, Denmark, Germany, Estonia, Finland, France, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, The Netherlands, Poland, Portugal, Romania, Slovenia, Slovakia, Spain, Sweden and the United Kingdom. 4 EU Official Journal 2001, L12/1 (at http://eur-lex.europa.eu/nl/index.htm). 5 At first, Denmark did not participate in the European harmonization of procedural law implemented in Regulation 44/2001, but finally agreed to the applicability of the provisions of Regulation 44/2001 (in slightly adjusted form) as from July 1 2007 (EU Official Journal 2007, L 94/70). Provisions similar to those in the EEX-Regulation are applicable to Switzerland and Iceland on the basis of the Convention on Jurisdiction and Enforcement of Decisions in Civil and Commercial Matters, signed in Lugano on NET-3 (Rel. 29-2010) NET-4 ENFORCEMENT OF MONEY JUDGMENTS — the European Council Regulation (EC) number 805/2004 of April 21, 2004, creating an European Enforcement Order for uncontested claims (hereinafter referred to as the “EEO- Regulation”),6 which entered into force on January 21, 2005 and is effective as from October 21, 2005, — the European Council Regulation (EC) number 1896/2006 of December 12, 2006 on the implementation of an European order for payment procedure (hereinafter referred to as the “EPO-Regulation”),7 which entered into force on December 31, 2006 and is effective as from December 12, 2008,8 and — the European Council Regulation (EC) number 861/2007 of July 11, 2007, establishing a European Small Claims Procedure (hereinafter referred to as the “ESC-Regulation”),9 which entered into force on August 1, 2007 and is effective as from January 1, 2009.10 The Netherlands and the United States have not concluded a bilateral treaty with one another concerning the recognition and enforcement of money judgments.11 October 30, 2007 (the “Lugano II Convention”), which entered into force on January 1, 2010. EU Official Journal 2007, L 339/3. Please note that Iceland and Switzerland have not yet ratified the Lugano II Convention. 6 EU Official Journal 2004, L 143/15. Please note that the EEO-Regulation does not apply with regard to Denmark. 7 EU Official Journal 2006, L 399/1. Please note that the EPO-Regulation does not apply with regard to Denmark. 8 With regard to articles 28-31 EPO-Regulation, this regulation is effective as from June 12, 2008. 9 EU Official Journal 2007, L 199/1. Please note that the ESC-Regulation does not apply with regard to Denmark. 10 However, article 25 is effective as from January 1, 2008. 11 We note that there is a bilateral treaty between the United States and The Netherlands regarding the enforcement of maintenance (support) obligations, dated 30 May 2001 which entered into force on 1 May 2002 (Trb. 2002, 120). However, this treaty will not be discussed, due to the fact that this report is limited to civil and commercial matters. Also, please note that the United States, Mexico and the European Union signed the Convention on Choice of Court Agreements of June 30, 2005. However, since the United States and the European Union have not yet ratified this Convention, it has not yet entered into force. (Rel. 29-2010) THE NETHERLANDS NET-5 I. PRESENT ATTITUDE TOWARD ENFORCEMENT OF FOREIGN MONEY JUDGMENTS A. Describe the receptiveness of your government (including courts) toward enforcement of foreign money judgments. The Netherlands traditionally favors reciprocal arrangements (bilateral and multilateral) for the international recognition and enforcement of Dutch and foreign judgments,12 i.e. recognition and enforcement in The Netherlands of judgments by a national court other than a court of The Netherlands. The Netherlands was one of the first countries to ratify multilateral conventions on enforcement of foreign judgments in civil and commercial matters. In The Netherlands the most important statutory rules with respect to recognition and enforcement of foreign money judgments13 are to be found in Articles 431 and 985, first paragraph, of the “Wetboek van Burgerlijke Rechtsvordering” (Code of Civil Procedure, hereinafter: “CCP”). Under these provisions, a foreign judgment shall not be enforced within the territory of The Netherlands in the absence of a treaty or a statutory provision. If a treaty applies14 a foreign judgment will normally be recognized by the Dutch judiciary as a matter of course. The appropriate court will then grant an exequatur without review of the foreign judgment on its merits, whereupon the foreign judgment qualifies for enforcement 12 “Judgments” for the purposes of this chapter are judicial decisions in main proceedings or in summary proceedings. Arbitral awards are beyond the scope of this chapter. 13 The scope of this chapter is limited to judgments in general civil and commercial matters, so that among others the following categories of judgments are excluded: (1) a judgment for taxes or fines; (2) a judgment in family matters such as alimony, inheritance and child maintenance, and (3) a judgment in cases relative to transport. The Netherlands are party to a large number of multilateral conventions dealing with inter alia, recognition and enforcement of foreign decisions in the field of family law. Such “money judgments” can be recognized and enforced by virtue of the following conventions: (1) the Convention concerning the recognition and enforcement of decisions relating to maintenance obligations towards children, The Hague, April 15, 1958 (Trb. 1959, 187); and (2) the Convention on the recognition and enforcement of decisions relating to maintenance obligations, The Hague, October 2, 1973 (Trb. 1974, 85) (and the treaty between The United States and The Netherlands as mentioned under footnote 12). 14 See Appendix II. (Rel. 29-2010) NET-6 ENFORCEMENT OF MONEY JUDGMENTS within the territory of The Netherlands on the same terms as if it were rendered in The Netherlands. If no treaty applies, enforcement of a foreign judgment is, as a result of Article 431 CCP, not possible, and the case will to a certain extent, have to be adjudicated again by the competent Dutch court. Since the landmark Bontmantel case of 1924, the highest court in The Netherlands, the “Hoge Raad” (hereinafter the “Supreme Court”) has developed a jurisprudence that purports to enforce a foreign judgment without a full retrial.15 This jurisprudence was reinforced in 1993 in Supreme Court December 17, 1993, NJ 1994, 348 (Esmil v. Enka Arabia) and 350 (Esmil v. Persian Gulf Shipyard Project) in which the Supreme Court held that an exclusive choice of forum clause in favor of a foreign court is valid and binding, irrespective of the question whether there exists a recognition and enforcement treaty between the foreign country in question and The Netherlands. In case one of the parties seeks enforcement of the foreign judgment in The Netherlands in the absence of a recognition and enforcement treaty, it may in principle suffice to state the existence of a valid and binding exclusive choice of forum clause and the foreign judgment based thereupon. If these statements are proved to be true, the Dutch court should take as a starting point that the parties are bound by the foreign judgment referred to by the exclusive choice of forum clause.16 By its judgments of 1993 and 1995, the Supreme Court considerably narrowed the scope of Article 431 CCP. These judgments amount to a certain form of de facto recognition of foreign judgments not covered by a treaty, depending on the circumstances of the case.
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