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.
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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
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— 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.
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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. At present, in cases in which no treaty is applicable Dutch courts in general recognize a foreign judgment, if it was rendered by a forum not being a forum non conveniens, the procedural rights of the defendant were safeguarded in the procedure and the judgment does not violate public order.17 In assessing whether these criteria are met,
15 Supreme Court September 14, 1924, NJ 1925, p. 91 “Fur coat”). See also Supreme Court June 24, 1932, NJ 1932, p. 1262 (“Hungarian Mortgage”) and Supreme Court April 1, 1938, NJ 1938, 989 (“Swiss Child II”). 16 See also Supreme Court, June 16, 1995, NJ 1996, 256 (SCI/AEC). 17 L. Strikwerda, Inleiding tot het Nederlandse Internationaal Privaatrecht (2008), p.275.
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Dutch courts are inclined to refer to general principles contained in the EEX-Regulation, as the Dutch legislation in this regard is to a great extent influenced by the EEX-Regulation. As a result of this development, the Dutch courts in general accord, in effect, binding force to a foreign judgment although such judgment has no binding force pursuant to any treaty.18 The binding force of a foreign judgment either based on a treaty or on the jurisprudence set out above, should be distinguished from its possible evidentiary value in the event of a new trial in a Dutch court.19 In exceptional cases in which a foreign judgment is not fit for de facto recognition, Dutch courts may still be reluctant to carry out an entirely new examination of the legal considerations summarized therein. This may in particular be the case, if the law of the foreign court is—under Dutch rules of conflicts of law—the lex causae (the law governing the case). However, the attitude of Dutch courts may be different when they have to deal with judgments from countries in which the independence of the judiciary is in doubt, either in general or in connection with the specific case, or in which only a very short judiciary tradition exists which does not yet warrant the standards of quality a court judgment should meet.20
B. Briefly describe recent illustrative attempts, whether successful or unsuccessful, to enforce a foreign money judgment in your country, particularly with regard to enforcement of any judgments from United States courts.
Over the last 25 years only a rather limited number of decisions of Dutch courts have been reported that relate to recognition of foreign
18 De Rooij & Polak, Private International Law in The Netherlands, (1987), p. 73. 19 See District Court Rotterdam, November 5, 2003, S&S 2004, 120. The court basically based its decision in the Dutch proceedings on the findings and views of the United States court in proceedings situated in the United States with regard to the same matter. In this case, the parties instituted legal proceedings both in the United States and The Netherlands. In the Dutch proceedings, the claim of the Dutch party was dismissed with referral to the preceding United States judgments in which the United States courts had ruled against this party. Although this case does pertain to the enforcement of United States (money) judgments, it does signal the willingness of Dutch courts to take into account such judgments. 20 See Verheul in: WPNR 5804, p. 686 in his notes to President District Court Arnhem, August 24, 1984 and further Jansen in “Burgerlijke Rechtsvordering”, comment 4 to Article 431 CCP.
(Rel. 29-2010) NET-8 ENFORCEMENT OF MONEY JUDGMENTS money judgments in matters other than family law matters, such as child support or alimony cases. The cases that have been reported mostly originate from neighboring states that fall within the ambit of European regulations.
It should be noted that the rather strict selection of cases qualifying for publication in law reports and legal reviews is, in practice, primarily dictated by the importance of the legal issues raised therein and by the manner in which those issues are handled by the courts. Consequently, the rarity of reported case law does not imply that only very few judgments of United States courts have been submitted to a Dutch court. It may well be that in practice de facto recognition of United States judgments is sometimes granted.
One case in particular is reported that pertains to the non- enforcement of a money judgment by a United States court, be it in an indirect way. Both the President of the District Court (“Rechtbank”) Arnhem and the Court of Appeal (“Gerechtshof”) Arnhem held that a prejudgment attachment in The Netherlands should be lifted, if the principal claim is litigated in a United States court, because the judgment of a United States court would not be enforceable in The Netherlands.21 It seems, however, that these judgments are not in accordance with the Supreme Court’s case law.22 According to the Supreme Court, a prejudgment attachment is valid in principle, even if the principal claim has to be instituted, pursuant to an exclusive contractual choice of forum, before a court of a foreign country with which country The Netherlands has no treaty concerning recognition and enforcement of foreign judgments.23 With respect to cases in which a foreign judgment, but not a judgment by a United States court, was in discussion, the following can be noted.
A standard decision that can be referred to is the judgment in summary proceedings of the President of the District Court Arnhem of August 24, 1984.24 This judgment illustrates the development in the
21 See President District Court Arnhem, August 1, 1988, and Court of Appeal Arnhem, October 11, 19S8, NJ 1989, 357. 22 See Supreme Court December 17, 1993, NJ 1994, 348 (Esmil v. Enka Arabia) and 350 (Esmil v. Persian Gulf Shipyard Project). 23 And which foreign country does not fall within the ambit of the European regulations in this regard. 24 President District Court Arnhem, August 24, 1984, NJ 1986, 86 with ann. of J.C. Schultsz.
(Rel. 29-2010) THE NETHERLANDS NET-9 jurisprudence of the Netherlands courts over the last decades towards de facto recognition of foreign (non-treaty) money judgments that are rendered in accordance with internationally acceptable standards. In this case a Liechtenstein judgment was accorded binding force. Although Liechtenstein was neither a party to the Brussels or the Lugano Convention nor a party to a bilateral agreement with The Netherlands, the President determined that the Liechtenstein legal system affords a similar level of protection as the legal systems of the countries that are a party to such Conventions or agreements. In applying by analogy the principles laid down in the various treaties, the President de facto recognized (without review on the merits) the Liechtenstein judgment.
Other cases of interest are the following:
(1) District Court Amsterdam, January 28, 1970, N.I.L.R. XXII, p. 79. A foreign plaintiff was, on the basis of a judgment of a French court, entitled to compensation for damages. The District Court did not review the case on its merits because the French court had jurisdictional competence according to its own law. The District Court considered this jurisdictional competence to be internationally acceptable. In addition thereto the defendant was offered sufficient opportunity to defend his case in the French court. (2) Supreme Court, March 20, 1970, NJ 1971, 275. Recognition of the judgment of an Italian court was refused on the ground that the Dutch defendant had not been duly notified to appear before that court. As a consequence of this insufficient notification, the default judgment of the Italian court was found by the Supreme Court to be contrary to Netherlands public policy. It therefore could not be recognized. (3) Court of Appeal Leeuwarden, February 23, 1972, NJ 1973, 303. This case concerned an attempt to have a money judgment of a Canadian court recognized. This attempt was unsuccessful because (a) it was a judgment by default; (b) it was rendered about ten years prior to the day on which the proceedings in The Netherlands were instituted; and (c) no elements other than the judgment concerned were submitted in support of the alleged claim.
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(4) District Court Rotterdam, June 18, 1976, Neth. Year book of Int. Law 321 (1978). In this case no authorization was granted for enforcement of a judgment of a French court because the jurisdiction of this French court was based on a forum actoris-rule, which rule was not considered to be internationally acceptable. (5) District Court Dordrecht, January 16, 1980, NJ 1983, 21; NIPR 1983, 199. The court held that the res judicata effect of a foreign judgment is to be determined according to the rules of the law applied by the foreign court (i.e., German law). (6) President District Court Rotterdam, March 4, 1983, S&S 1983, 96. In this case a judgment of a French court rendered in summary proceedings did not qualify for recognition under the Brussels Convention because the judgment concerned a provisional measure. The President of the District Court held that the dispute could be litigated again before a Dutch court. (7) District Court Haarlem, December 18, 1984, NJ 1986, 87; NIPR 1986, 317. In this case recognition was sought for a judgment of an Austrian court. This Austrian court was not competent under the Austrian-Netherlands Agreement concerning recognition and enforcement of civil judgments.25 Nevertheless, the Austrian judgment was recognized by the District Court because “for practical reasons” the Austrian court had to be considered to be the competent court. (8) District Court Rotterdam, February 17 1995, NIPR 1996, 134. In this case the Rotterdam District Court was requested for recognition and the granting of a leave to enforce (exequatur) with regard to a judgment from a United States court, in which a Dutch resident was ordered to pay USD 520,000 compensation and USD 1,000,000 on punitive damages, on the basis of a wrongful act.26 Although the court did not perform an entirely new examination of the merits of the case, it did decide that the United States’ judgment as to the amount of the compensation awarded by the United States court could not be recognized without an assessment of the actual damage to the claimant and, in that light, the proportionality of the compensation to be paid by the Dutch resident. On appeal, the Hague Court of Appeal
25 This treaty entered into force on February 6, 1963, Trb. 1961, 51. 26 Rotterdam District Court, February 17 1995, NIPR 1996, 134.
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upheld the judgment of the court in first instance on the basis of the assumption that the court was allowed to examine the composition of the awarded damages, including the punitive damages and the proportionality thereof in light of the actual damage suffered by the claimant.27 The court of appeal considered that this examination was justified in the context of assessing whether recognition and enforcement of a United States judgment would be against public order. (9) District Court Rotterdam, March 17, 2010, LJN BL8614. The court considered that on the basis of article 341 paragraph 2 CCP, it could follow the final judgment of the United States court, since the three minimum requirements - the judgment was rendered by a forum not being a forum non conveniens, the procedural rights of the defendant were safeguarded in the United States procedure and the judgment did not violate public order – were met.28
C. Describe any proposed legislation or other governmental action in your country that could significantly affect the enforcement of foreign money judgments.
The most important provisions concerning the enforcement of foreign judgments, directly applicable in The Netherlands, are the provisions of the EEX-Regulation, EEO-Regulation, EPO-Regulation and the ESC-Regulation.29 There are no other regulations or treaties concerning the enforcement of foreign money judgments due to come into force in The Netherlands in the foreseeable future. However, the European Commission is currently evaluating and investigating the desirability of a revision of the EEX-Regulation.30
27 Gerechtshof ‘s-Gravenhage, October 29, NIPR 1997, 224. 28 Please note that, in the context of the recognition and enforcement of arbitral awards, it has been made quite clear that a conflict with European competition law forms ground for the refusal of arbitral awards, since European competition law is deemed to form part of the Dutch public order (see European General Court, June 1, 1999, no. C-126/97, Jur. 1999, I-3055, NJ 2000, 339). On the basis the aforementioned, the Hague Court of Appeal - notwithstanding the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, dated June 10, 1958 - denied the recognition of three United States arbitral awards (see The Hague Court of Appeal, March 24, 2005, NJF 2005, 239). 29 See our General Introduction. 30 Greenbook, COM (09) 174-175.
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II. PROCEDURE TO ENFORCE A FOREIGN MONEY JUDGMENT
Introduction
The answers in this Section relate only to foreign money judgments that are covered by a European regulation or a treaty, since there is no enforcement procedure in situations in which no European regulation or a treaty is applicable. In such a case, a Dutch court has to decide on the basis of article 431 CCP whether or not to adopt the foreign judgment in new proceedings before that court.
Hereafter, a distinction is made between proceedings conducted under (a) the special procedure laid down in the EEX-Regulation, (b) the EEO-Regulation, (c) the EPO-Regulation, (d) the ESC-Regulation, and (e) the general procedure set out in articles 985-992 CCP.
A. General Summary of Procedure
1. Briefly summarize the procedure and expected length of time necessary to enforce a foreign money judgment if a treaty provides for enforcement of judgments from the country of origin.
(a) EEX-Regulation regarding the recognition and enforcement European judgments
The main elements of the procedure laid down in the EEX- Regulation are the following:
(1) a judgment given and enforceable in a Member State,31 is also enforceable in another Member State when it is declared enforceable in that other Member State (article 38 EEX- Regulation); (2) an application to declare a judgment given in a Member State enforceable, is submitted to the court in interlocutory proceedings of the District Court in which district the party against whom enforcement is sought, has his/her domicile or in
31 See footnotes 4, 6-8 and 10.
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which district the place of enforcement lies (articles 38 and 39 EEX-Regulation); (3) the aforementioned court immediately declares the foreign judgment enforceable, without any review of the judgment (as to the substance thereof), provided that the documents required on the basis of articles 53-54 EEX-Regulation (see Annex V EEX-Regulation) are produced (articles 41 EEX-Regulation); (4) the party against whom enforcement is sought, may not make any submissions in the application procedure for a declaration of enforceability (in the first instance), but is served the declaration of enforceability (article 42 paragraph 2 EEX-Regulation) and may appeal against the decision on such application within one month of the service of the declaration at the District Court of the court in interlocutory proceedings which decided on the application32 (articles 41-43 EEX-Regulation); (5) the judgment in appeal may be contested by appeal in cassation before the Supreme Court (article 44 EEX-Regulation); and (6) the courts that are competent on the basis of articles 43 and 44 EEX-Regulation may only refuse or revoke a declaration of enforceability on the grounds specified in articles 34 and 35 EEX-Regulation (article 45 EEX-Regulation).
(b) EEO-Regulation regarding the European Enforcement Order for uncontested claims
The main elements of the procedure laid down in the EEO- Regulation are the following:
(1) a judgment certified as a European Enforcement Order in a Member State is recognized and enforced in the other Member States under the same conditions as a judgment delivered by a court of that Member State without the need for a declaration of enforceability (articles 5 and 20 paragraph 1 EEO-Regulation);
32 Article 4 of the Act of July 2, 2003, executing the EEX-Regulation. The time limit is two months, if the party against whom enforcement is sought, is domiciled in a member state other than the member state in which the declaration was given (article 43 paragraph 5 EEX-Regulation).
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(2) a judgment is only certified as a European Enforcement Order if it sees to uncontested claims within the meaning (articles 3, 4 and 6 EEO-Regulation) and the proceedings leading to such judgment meet the strict requirements of the EEO-Regulation, particularly with respect to the service of documents on the debtor and information to be provided to the debtor (articles 12- 17 EEO-Regulation); (3) a European Enforcement Order is issued in a standard form (Annex 1 EEO-Regulation) and in the language of the judgment (article 9 EEO-Regulation); (4) the defendant is entitled to apply for a review of the European Enforcement Order on the grounds set out in article 19 paragraph 1 (a) EEO-Regulation within 4 weeks as from the moment that the decision has become known to the defendant and on the ground as set out in article 19 paragraph 1 (b) EEO- Regulation within 4 weeks after the relevant grounds have ceased to exist;33 (5) in order to enforce the European Enforcement Order the debtor need only provide a copy of the judgment, a copy of the European Enforcement Order certificate and a certified Dutch translation of the aforementioned certificate, which documents (together) form a gross within the meaning of the CCP (article 20 EEO-Regulation); (6) any enforcement proceedings in the Member State where enforcement is sought, may not entail a review of the judgment on its substance and may only be refused on the basis that it is irreconcilable with a preceding decision or order given in any Member State or third country, provided that the requirements in this regard are, but may – under certain circumstances – be stayed or limited34 (articles 21 and 23 EEO-Regulation); and (7) opposition against the recognition of a European Enforcement Order is not possible (article 5 EEO-Regulation).
33 Article 8 paragraph 4 of the Act of September 28, 2005, executing the EEO- Regulation. 34 With regard to proceedings regarding the refusal and a stay or limitation of the enforcement on the basis of articles 21 and 23 EEO-Regulation, article 438 CCP (enforcement proceedings) is applicable (article 11 paragraph 1 of the Act of September 28, 2005 executing the EEO-Regulation).
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(c) EPO-Regulation regarding the European Payment Order procedure
The main elements of the procedure laid down in the EPO- Regulation are the following:
(1) with regard to a claim meeting the strict requirements of the EPO-Regulation (e.g. that the claim is a cross-border claim and sees to a claim for a specific amount that has fallen due at the time of the application for an European order for payment) an European Payment Order is granted in swift proceedings upon a claimant’s request at the court having jurisdiction over such claim on the basis of the EEX-Regulation, provided that the requirements under the EPO-Regulation are fully met with regard to the whole claim and no completion or modification of the application is needed (articles 8 and 12 EPO-Regulation); (2) the European Payment Order thus issued, is to be served on the defendant in the ways described in articles 13 and 14 EPO- Regulation; (3) the defendant may lodge opposition with the court that issued the European Payment Order within 30 days from the day the order was served upon the defendant and if this term lapses without any opposition being filed, the aforementioned court will declare the European order for payments enforceable whereupon the defendant can only apply for a review of the European order for payment before the aforementioned court on the grounds set out in article 20 EPO-Regulation (articles 16-18 EPO-Regulation); (4) however, after the lapse of the aforementioned time limit of 30 days, the defendant is (still) entitled to apply for a review of the European Payment Order on the grounds as set out in article 20 EPO-Regulation, provided the defendant acts promptly, which review might lead to the decision that the European Payment Order is null and void; (5) the issued European Payment Order, must be recognized and enforced in other Member States without the need for a declaration of enforceability and without the possibility of opposing its recognition (article 19 EPO-Regulation);
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(6) the enforcement of the European Payment Order in another Member State may only refused on the basis that it is irreconcilable with a preceding decision or order given in any Member State or third country, provided that the requirements in this regard are met and may – under certain circumstances – be stayed or limited (article 22 and 23 EPO-Regulation); and (7) a copy of the declaration of enforceability by a court of any Member State together with the European Payment Order, is considered to form an executorial title within the meaning of the CCP and may be executed in the same way as a Dutch gross (articles 7 and 8 of the Act of May 29, 2009, Stb. 232, executing the EPO-Regulation).
(d) ESC-Regulation regarding the European Small Claims procedure
(1) with regard to a claim of which the value does not exceed EUR 2,000 and which meets the other requirements of the ESC- Regulation, an European Small Claims procedure may be commenced by filing a standard form at the court in interlocutory proceedings of the District Court having jurisdiction over such claim (articles 2-4 ESC-Regulation); (2) the European Small Claims procedure is in principle a written procedure, in which the court may decide to refuse a request for oral hearings, which refusal may not be contested separately (article 5 ESC-Regulation); (3) the form filed by the applicant will be served on the defendant together with the answer-form to be filled in by the court where the procedure is commenced and all other relevant documents, within 14 days of the receipt of applicant’s form, whereupon the defendant is allowed to submit a response within 30 days of such service, in which a counterclaim may be filed (article 5 ESC-Regulation); (4) if the defendant claims that the issue regarding exceeds the limitation of the procedure to EUR 2,000, the aforementioned court will decide within 30 days of the receipt of the defendant’s response whether the claim falls within the scope of the ESC- Regulation, which decision may not be contested separately (article 5 ESC-Regulation);
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(5) if the defendant’s counterclaims exceeds the aforementioned limitation, the court will not deal with both the claimant’s claim and the defendant’s claim in the European Small Claim procedure but will deal with those claims in the procedure applicable on the basis of the court’s procedural law (article 5 paragraph 7 ESC-Regulation); (6) within 30 days from the receipt of the defendant’s response – or claimant’s defense to the defendant’s counterclaim – the court will give a judgment (or demand further details, order the taking of evidence or summon parties to oral hearings), to which judgment no appeal is possible35 (with regard to the judgment of the Dutch court in the European Small Claim) and which judgment is enforceable (article 15 paragraph 1 and article 17 ESC-Regulation, in conjunction with article 2 paragraph 2 of the Act of May 29, 2009, Stb. 234, executing the ESC-Regulation); (7) the defendant is entitled to apply for a review of the judgment rendered in the European Small Claims procedure on the grounds as set out in article 18 paragraph 1 (a) ESC-Regulation within 4 weeks as from the moment that the decision has become known to the defendant and on the ground as set out in article 18 paragraph 1 (b) ESC-Regulation within 4 weeks after the relevant grounds have ceased to exist;36 (8) the aforementioned judgment, must be recognized and enforced in other Member States without the need for a declaration of enforceability, without the possibility of opposing its recognition and at the request of one of the parties the court will issue a certificate of the judgment (article 20 ESC-Regulation); and (9) the enforcement of judgment in an European Small Claims procedure in another Member State may only refused on the basis that it is irreconcilable with a preceding decision or order given in any Member State or third country, provided that the requirements in this regard are met and may – under certain circumstances – be stayed or limited (article 22 and 23 ESC- Regulation).
35 Article 2 paragraph 2 of the Act of May 29, 2009, executing the ESC-Regulation. 36 Article 6 paragraph 2 of the Act of May 29, 2009, executing the ESC-Regulation.
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(e) Other treaties, on the basis of the general procedure set out in Articles 985-992 CCP
If a treaty exists that does not provide special rules with regard to the application for an exequatur, the general procedure of Articles 985-992 CCP applies. The main elements of this procedure are the following:
(1) an exequatur is requested by means of a petition in writing, which petition is submitted by an attorney at law; (2) the party against whom enforcement is sought is eventually summoned in court by bailiffs writ (“deurwaardersexploit”). If this party does not appear in court, the court may nevertheless grant the exequatur, (3) the exequatur shall contain a statement of reasons.
If all procedural requirements are timely met, the exequatur will usually be delivered after 4 to 6 weeks after the petition in writing referred to under (1) has been filed. The foregoing is based on the assumption that all necessary documentation is at hand at the outset of the procedure.
2. Briefly summarize the procedure and expected length of time necessary to enforce a foreign money judgment if no treaty provides for enforcement of judgments from the country of origin.
Proceedings should be initiated before the court where the judgment debtor is resident or where his assets are located. In such cases the ordinary procedure in civil matters applies. Generally speaking, if no procedural incidents are raised and no delay tactics are used by the judgment debtor, such procedure includes a writ of summons and a written statement of defense. Sometimes the parties may file a written reply, and a written rejoinder. If one of the parties so requests, the case is orally argued before the Dutch court. No specific guidelines can be provided as to the expected length of the procedure. It is unlikely that the procedure will take less than one year.
In some cases Presidents of district courts have rendered, in summary proceedings, a judgment based on a foreign judgment. However, such “implied recognition” should not be understood as a
(Rel. 29-2010) THE NETHERLANDS NET-19 first step to enforcement. An example of such implied recognition is the case in which the President refused to lift an attachment on assets located in The Netherlands, after a foreign court held that the claim, for which the attachment was made, was well founded.37 In such a case the foreign judgment is not “enforced” properly speaking, but it constitutes the basis for the judgment by the Netherlands court.38
B. Detailed Discussion of Procedure
1. Indicate the courts in your country that are competent (i.e., have jurisdiction) to grant enforcement of a judgment.
(a) EEX-Regulation regarding the recognition and enforcement European judgments
The court in interlocutory proceedings of the District Court in which district the party against whom enforcement is sought, has his/her domicile or in which district the place of enforcement lies, has jurisdiction to declare the judgment rendered in another Member State enforceable (article 39 paragraph 2 EEX-Regulation).
(b) EEO-Regulation regarding the European Enforcement Order for uncontested claims
A judgment of a (Dutch) District Court may be certified as a European Enforcement Order by the court in interlocutory proceedings of the aforementioned District Court. If such a judgment is rendered by a Court of Appeal, the judgment may be certified by that Court of Appeal (article 2 paragraph 1 of the Act of September 28, 2005 executing the EEO-Regulation).
Both the court of the district in which the judgment debtor is resident and the court of the district in which enforcement is sought have jurisdiction with regard to the debtor’s application to refuse the enforcement of the European Enforcement Order or to stay or limit the enforcement thereof.39
37 See President District Court Arnhem, August 24, 1984, NJ 1986, 86. See also President District Court Breda, December 1, 1986, KG 1987, 31. 38 See Supreme Court December 17, 1993, NJ 1994, 348 (Esmil v. Enka Arabia) and 350 (Esmil v. Persian Gulf Project). 39 Infra footnote 34.
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(c) EPO-Regulation regarding the European Payment Order procedure
The court having jurisdiction with regard to the European Payment Order procedure, is assigned on the basis of the rules of jurisdiction in the EEX-Regulation, which, in principle, would assign jurisdiction to the (court in interlocutory proceedings of the) District Court in which district the debtor is domiciled.
In general, the court of the district in which the debtor is domiciled or the court in which district the execution of the European Payment Order will take place, has jurisdiction with regard to the debtor’s application to refuse the enforcement of the European Payment Order or to stay or limit the enforcement thereof.40
(d) ESC-Regulation regarding the European Small Claims procedure
The court in interlocutory proceedings having jurisdiction with regard to a European Small Claims procedure, is assigned on the basis of the rules of jurisdiction in the EEX-Regulation, which, in principle, would assign jurisdiction to the (court in interlocutory proceedings of the) District Court in which district the debtor is domiciled.41
In general, the court of the district in which the debtor is domiciled or the court in which district the execution of the European Payment Order will take place, has jurisdiction with regard to the debtor’s application to refuse the enforcement of the European Enforcement Order or to stay or limit the enforcement thereof.42
(e) Other treaties, on the basis of the general procedure set out in Articles 985-992 CCP
Both the court of the district in which the judgment debtor is resident and the court of the district in which enforcement is sought have jurisdiction in respect of the application for an exequatur (Article
40 Article 438 CCP in conjunction with article 10 of the Act of May 29, 2009, Stb. 232, executing the EPO-Regulation. 41 Article 3 ESC-Regulation in conjunction with article 2 paragraph 1 of the Act of May 29, 2009, Stb. 234, executing the ESC-Regulation. 42 Article 438 CCP in conjunction with article 8 of the Act of May 29, 2009, Stb. 234, executing the ESC-Regulation.
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985 CCP). An exequatur is valid throughout the territory of the Kingdom of The Netherlands.
2. Describe any requirements regarding translation and authentication of the documents evidencing the original judgment.
(a) EEX-Regulation regarding the recognition and enforcement European judgments
An authenticated translation of the documents is required under articles 53 and 54 EEX-Regulation (copy of the judgment and a certificate in the standard form of Annex V EEX-Regulation).
(b) EEO-Regulation regarding the European Enforcement Order for uncontested claims
With regard to the certification of a judgment as a European Enforcement Order, an authenticated copy of the (Dutch) judgment and the court document in which the proceedings were initiated, is required (and – normal – copies of all document relevant in the context of assessing the merits of the claim).43
With regard to the enforcement of a foreign European Enforcement Order, a Dutch translation – or a translation in any other language which the debtor is capable of comprehending – of the judgment is required, as well as a Dutch or English authenticated version of the European Enforcement Order. 44
(c) EPO-Regulation regarding the European Payment Order procedure
With regard to a European order of payment procedure before the Dutch courts, the court document as well accompanying exhibits need to be in Dutch, although Dutch courts usually accept English, German and even French documents as well (if the German and French documents are not too complicated).
43 Article 2 of the Act of September 28, 2005, executing the EEO-Regulation. 44 Article 10 of the Act of September 28, 2005, executing the EEO-Regulation.
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With regard to the enforcement of a foreign European Payment Order, a Dutch translation of such European Payment Order is required.45
(d) ESC-Regulation regarding the European Small Claims procedure
With regard to a European Small Claims procedure before the Dutch courts, the court document as well as accompanying exhibits need to be in Dutch, although Dutch courts usually accept English, German and even French documents as well (if the German and French documents are not too complicated).
With regard to the enforcement of a judgment of a foreign European Small Claims procedure, a copy of the judgment in the foreign European Small Claims procedure as well as an translation of the certificate issued (by the foreign court) on the basis of article 20 paragraph 2 ESC-Regulation.46
(e) Other treaties, on the basis of the general procedure set out in Articles 985-992 CCP
The application must be accompanied by an authentic copy of the judgment to be enforced and of the documents establishing that the judgment is enforceable in the country in which it was rendered (article 986 section 2 CCP).
The court may, for the purposes of authentication, ask for legalization of the copy of the judgment and of the other documents, with the exception of judgments from countries which are Member States of the Hague Convention of October 5, 1961 on Abolition of Legalization of Foreign Public Instruments (Trb. 1963, 28). Legalization is of importance for judgments from courts in countries which do not fall within the ambit of the European regulations. The court may further ask for a Dutch translation by a sworn translator (article 986 CCP), but this is unlikely to happen if the original judgment is in the English language.
45 Article 8 paragraph 2 of the Act of May 29, 2009, Stb. 232, executing the EPO- Regulation. 46 Article 7 paragraph 2 of the Act of May 29, 2009, Stb. 234, executing the ESC- Regulation.
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3. Indicate whether jurisdiction over the judgment debtor must be obtained by your courts in the enforcement action.
In case a Dutch court has jurisdiction pursuant to the rules set out in this Section II under B.1., above, it has ipso iure international jurisdiction.
4. If the original judgment is in a foreign currency, describe whether the judgment need be converted into local currency.
Under the aforementioned European regulations as well as under the CCP the answer is in the negative. According to article 6:123 Dutch Civil Code (hereinafter “DCC”), the judgment creditor is entitled to request a judgment in the foreign currency or in Dutch currency being the Euro. According to article 6:124 DCC the applicable exchange rate is determined on the date on which payment is made. Both articles are of a non-mandatory nature, i.e., a contract may provide otherwise.
5. Indicate whether the judgment creditor can receive interest on the original judgment amount regardless of whether the original judgment amount included interest.
In principle, this question can be answered irrespective of the European regulation or treaty on the basis of which enforcement is sought. In principle, the judgment creditor can only receive interest on the original judgment amount if this was awarded in the said judgment. In principle, the (Dutch) court having jurisdiction with regard to the enforcement of a (foreign) judgment in The Netherlands is most likely not the competent court as to the claim for (statutory) interest, as such a claim is likely to fall within the jurisdiction of the (foreign) court that rendered the aforementioned judgment. Therefore, it would be most favorable for the claimant if in such judgment interest were awarded over a period up to the actual enforcement thereof.
The EEO-Regulation provides for a special arrangement with regard to the interest due over the principle amount. According to the EEO- Regulation, a certification of a judgment as a European Enforcement Order also includes such interest (article 7 EEO-Regulation). Consequently, the interest calculated over the principal amount is included in the executor title. However, also in this context it is necessary that in the (principal) judgment this interest was awarded to the claimant.
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With regard to the EPO-Regulation and the ESC-Regulation, we note that the procedure provided for in these regulations results in an executor title which also may comprise interest calculated of the principal amount (article 7 EPO-Regulation and article 2 paragraph 1 ESC-Regulation).
On the basis of Dutch private international law, the applicable interest rate is in principle determined by the law which governs the claim. According to article 6:120 DCC, the Dutch statutory interest rate is established from time to time by royal administration decree (“algemene maatregel van bestuur”). The statutory interest rate is at present (i.e., July 2010) 8 percent per annum. According to Dutch law statutory interest is due as of the date of default as referred to in article 6:81 DCC.
6. Indicate whether the successful judgment creditor is entitled to reimbursement of its attorneys fees or court costs incurred in bringing the enforcement proceeding.
Attorneys Fees and Costs
(a) EEX-Regulation regarding the recognition and enforcement European judgments
If a party applying for a declaration of enforceability, has – in the Member State where the judgment was rendered – benefited from complete or partial legal aid or exemption from costs or expenses, this party with regard to the enforcement procedure in The Netherlands is entitled to the most favorable legal aid or most extensive exemption from costs and expenses under Dutch law (article 50 EEX-Regulation). In this context, it is also notable that the application to declare the judgment enforceable may also be submitted by a bailiff (as well as by an attorney at law).47
In keeping with the prohibition under the EEX-Regulation to levy any contributions or fees by reference to the value matter of the issue (article 52 EEX-Regulation), the Dutch courts, with regard to the enforcement procedure, only charge a fixed court fee on the basis of the Civil Cases Fees Act (“Wet Tarieven Burgerlijke Zaken”).
47 Article 2 paragraph 2 of the Act of July 2, 2003, executing the EEX-Regulation.
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The (Dutch) court will order the party against whom the judgment is enforced, to pay the costs associated with the application to declare the (foreign) judgment enforceable.48
(b) EEO-Regulation regarding the European Enforcement Order for uncontested claims
The EEO-Regulation does not contain a special provision regarding the reimbursement of attorneys’ fees or court costs incurred in the context of the application for certification of the judgment. However, it is notable that the application for the certification of a judgment as a European Enforcement Order may also be submitted by a bailiff (as well as by an attorney at law).49 As the enforcement of a foreign European Enforcement Order must take place under the same conditions as a Dutch court judgment (article 20 paragraph 1 EEO-Regulation), it is most likely that the claimant can reimburse the costs incurred associated with the enforcement of the European Enforcement Order in the Netherlands on the basis of and as far as allowed under Dutch procedural law.
(c) EPO-Regulation regarding the European Payment Order procedure
Although the EPO-Regulation does not contain a rule as to the reimbursements of attorneys’ fees or court costs incurred with regard to the European Payment Order procedure, it does specify that representation by a lawyer is not mandatory in European Payment Order procedures (article 24 EPO-Regulation). Furthermore, the EPO- Regulation prescribes that the European Payment Order procedure should not lead to more (combined) court fees than regular Dutch proceedings and that these court fees should be a fixed amount (article 25 EPO-Regulation). In keeping with this, the Dutch courts with regard to the European Payment Order procedure only charge a fixed court registry fee on the basis of the Civil Cases Fees Act (“Wet Tarieven Burgerlijke Zaken”).50
48 Article 3 paragraph 2 of the Act of July 2, 2003, executing the EEX-Regulation. 49 Article 2 paragraph 3 of the Act of September 28, 2005, executing the EEO- Regulation. 50 Article 11 paragraph 1 of the Act of May 29, 2009, Stb. 232, executing the EPO- Regulation. On the basis of paragraph 2 of this article, the defendant is not due any court fee with regard to his/her response, provided that after such response the case is decided on.
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Considering that the Dutch law on proceedings commenced by an application is – in addition to the provisions of the EPO-Regulation – applicable to the European Payment Order procedure,51 it is most likely that the claimant can reimburse the costs incurred with regard to a Dutch European Enforcement Order procedure on the basis of and as far as allowed under Dutch procedural law.
We note that also with regard to foreign European Payment Orders, such an Order – similar to a foreign European Enforcement Order - must be enforced under the same conditions as a Dutch court judgment (article 21 paragraph 1 EPO-Regulation). Thus, it is most likely that the claimant can reimburse the costs incurred with regard to the enforcement of the European Payment Order in the Netherlands on the basis of and as far as allowed under Dutch procedural law.
(d) ESC-Regulation regarding the European Small Claims procedure
With regard to the European Small Claims procedure, the unsuccessful party bears the costs of such procedure (article 16 ESC- Regulation). The costs relating to the enforcement procedure with regard to judgments given in a foreign European Small Claims procedure are likely to be reimbursable on the basis of and as far as allowed under Dutch procedural law.
(e) Other treaties, on the basis of the general procedure set out in Articles 985-992 CCP
Article 988, last paragraph, CCP refers explicitly to the general rules of Articles 56, 57 and 58 CCP. According to those articles court costs, and other legal costs, shall in accordance with certain official guidelines be awarded against the party whose request for an exequatur is dismissed or the party against whom a request for an exequatur has been granted.
However, it should be noted that attorneys’ fees are, in reality, reimbursed to a limited extent only. In comparison with the current practice in Anglo-Saxon countries, the compensations are low and do not cover all attorneys’ costs incurred. The actual court costs (“grififierechten”) are usually lower than in Anglo-Saxon countries. In
51 Article 12 of the Act of May 29, 2009, Stb. 232, executing the EPO-Regulation.
(Rel. 29-2010) THE NETHERLANDS NET-27 general these costs have to be paid in full by the party whose request for an exequatur is dismissed or the party against whom a request for an exequatur has been granted. If both parties are in part successful the costs may be set off.
Costs are fixed at the time of the judgment. The court is not required to explain in the judgment the precise amount of the awarded costs (i.e., court costs and attorneys’ fees).
Security from Judgment Creditor
In general, a judgment creditor who is not resident in The Netherlands may be required by the judgment debtor to provide security (“cautio judicatum solvi”, Article 152 CCP). Such request must be made by the judgment debtor before his statement of defense on the merits of the case. As long as the security has not been provided, the judgment debtor is not obliged to file such statement of defense.
However, there are important exceptions to this general rule. The EEX-Regulation, EEO-Regulation, EPO-Regulation and the ESC- Regulation all prohibit the court of the Member State where the enforcement is sought to require any form of security from a party requesting enforcement on the basis of the aforementioned regulations on the ground that this party is a foreign national or not domiciled in the Member State where enforcement is sought.52
Furthermore, according to the Court of First Instance of Sint Maarten, Netherlands Antilles, security may not be required from United States citizens and legal entities as a result of Article XXXIII of the “Friendship Treaty” between the United States and The Netherlands of March 27, 1956 (Trb. 1956, 40).53 Furthermore, security cannot be required from nationals of states that are party to the Hague Convention on Civil Procedure (March 1, 1954, Trb. 1954, 40, Article 17).
7. Describe the conditions under which the losing party may appeal your court’s decision whether or not to enforce a judgment.
52 Article 51EEX-Regulation, article 20 paragraph (3) EEO-Regulation, article 21 paragraph (3) EPO-Regulation and article 21 paragraph (4) ESC-Regulation. 53 Court of First Instance Sint Maarten August 11, 1969, NJ 1969, 95.
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(a) EEX-Regulation regarding the recognition and enforcement European judgments
A decision on the application for a declaration of enforceability may be appealed against by either party (article 43 paragraph 1 EEX- Regulation) before the District Court of the court in interlocutory proceedings which decided on the application, within one or two months – depending on the question whether the party against whom enforcement is sought, is domiciled in a Member State other than the Member State in which the declaration was given – from the service of the declaration of the court in interlocutory proceedings on the party that institutes such appeal (article 43 paragraph 5 EEX-Regulation in conjunction with article 4 paragraph 3 of the Act of July 2, 2003, executing the EEX-Regulation).54 Thus, also the requesting party may lodge an appeal in case the application is denied.
The appeal in cassation on the basis of article 44 EEX-Regulation is subject to similar conditions.55
(b) EEO-Regulation, EPO-Regulation and ESC-Regulation
On the request for the refusal, stay or limitation of the enforcement of (i) a foreign European Enforcement Order on the basis of (respectively) articles 21 and 23 EEO-Regulation, (ii) a foreign European Payment Order on the basis of (respectively) articles 22 and 23 EPO-Regulation, or (iii) a foreign judgment rendered in a European Small Claims procedure on the basis of (respectively) articles 22 and 23 ESC-Regulation, article 438 CCP is applicable.56 With regard to the decision of the competent District Court on such requests, an appeal may be lodged before the Court of Appeal.57 It is possible to lodge an appeal in cassation against the decision of such Court of Appeal.
54 Infra footnote 32. 55 Ministerial circular letter to the Dutch courts, bailiff’s organization and lawyer’s organization, reference BWBR0013335, p. 3 (sub “Rechtsmiddelen”). 56 Respectively article 11 paragraph 1 of the Act of September 28, 2005, executing the EEO-Regulation, article 10 of the Act of May 29, 2009, Stb. 232 executing the EPO-Regulation and article 8 of the Act of May 29, 2009, Stb. 234 executing the ESC- Regulation. 57 Supreme Court, April 13, 1984, NJ 1984, 566.
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(c) Other treaties, on the basis of the general procedure set out in Articles 985-992 CCP
The court’s decision, if so requested, is usually declared provisionally enforceable (“uitvoerbaar bij voorraad”). Provisional enforceability entails that an eventual appeal will not suspend enforcement. However, the judgment creditor enforcing the foreign judgment will be held liable, in case the exequatur is annulled in appellate proceedings.
The appeal (“hoger beroep”) against a judgment granting an exequatur may be lodged with the court of appeal within one month after the date of the exequatur judgment (article 989 CCP). After the appellate proceedings an appeal in cassation may be lodged with the Supreme Court within one month after the judgment in the appellate proceedings has been rendered (article 990 CCP).
8. Describe any other procedures that could seriously affect the enforcement action.
(a) European regulations
With regard to the EEO-Regulation, EPO-Regulation and ESC- Regulation the review procedure as provided for in article 19 EEO- Regulation, article 20 EPO-Regulation and article 18 ESC-Regulation may interfere with the enforcement on the basis of these regulations through the stay or limitation of the enforcement on the basis of article 23 of the regulations. In addition to the aforementioned, apart from the procedures set out under 7(a) above, there are no procedures to affect the enforcement action.
(b) Other Treaties
As explained under 7(c) above, the exequatur is usually declared provisionally enforceable. The judgment debtor may nevertheless try to bar enforcement by initiating summary proceedings (“kort geding”) to obtain an injunction on further enforcement. The President of the district court, in whose district enforcement is effected, is competent to hear the summary proceedings (article 438 in conjunction with article 289 CCP).
It is unlikely that a judgment debtor will succeed in barring enforcement by initiating summary proceedings, except if he does so in exceptional circumstances. According to the Supreme Court,
(Rel. 29-2010) NET-30 ENFORCEMENT OF MONEY JUDGMENTS enforcement of a judgment by a Dutch court can only be barred, if the interest of the judgment debtor should reasonably outweigh the interest of the judgment creditor who is pursuing enforcement without further delay. This might be the case, if the judgment is dearly erroneous or if the facts occurring after the judgment were rendered have created an emergency situation justifying suspension of enforcement.58
From judgments of lower Dutch courts one can infer that a similar line of reasoning should be followed in case a judgment debtor tries to bar enforcement of a judgment of a foreign court after an exequatur has been obtained by the judgment creditor.59
III. REQUIREMENTS FOR ENFORCEMENT OF A FOREIGN MONEY JUDGMENT
Introduction
The requirements discussed in this Section III relate primarily to the issue of recognition rather than to enforcement of a foreign judgment. If a judgment is recognized, it is accorded binding force. Recognition always precedes enforcement.
A. General Summary of Requirements
1. Assuming the proper procedure is followed as set out in Section II, briefly summarize the requirements that must be met to enforce a foreign money judgment if a treaty provides for enforcement of judgments from the country of origin.
Firstly, we note that the grounds to refuse enforcement under the EEO-Regulation, EPO-Regulation and the ESC-Regulation are extremely limited. In short, the enforcement may only be outright refused in cases where there is irreconcilable with an earlier judgment
58 See Supreme Court April 22, 1983, NJ 1984, 145 (Ritzen v. Hoekstra). See also Supreme Court December 22, 2006, NJ 2007, 173 (“Schmidt/Thunissen) and Supreme Court February 24, 1989, NJ 1989, 551 (Comprifalt v. Compri Aluminum), Supreme Court October 5, 1990, NJ 1991, 6 (Van der Maas v. Wouter), Supreme Court October 30, 1992, N J 1993, 4 (Zegwaard v. De Baat) and Supreme Court November 5, 1993, NJ 1994, 154 (De Wit v. Van den Berg). 59 See President District Court Middelburg April 10, 1992, KG 1992, 172 and President District Court Utrecht May 26, 1992, KG 1992, 243.
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Other than that, we refer to the basic requirements under EEX- Regulation. These requirements under other treaties which are applicable to The Netherlands are in essence similar to those incorporated in the EEX-Regulation.
The main tenet of the EEX-Regulation is that a judgment rendered in a Contracting State should be recognized in another Contracting State without review and by way of a simple implementation.
In exceptional circumstances, recognition under the EEX-Regulation may be refused. According to articles 34 and 35 EEX-Regulation a foreign judgment shall not be recognized in case:
(1) Such recognition is contrary to public policy in the Member State in which recognition is sought; (2) It was rendered in default of appearance, if the defendant was not duly served with the document that instituted the proceedings or with an equivalent document in sufficient time to enable him to arrange for his defense in the proceedings before the court of origin; (3) The judgment is irreconcilable with a judgment rendered in a dispute between the same parties in the Member State in which recognition is sought; (4) The court of the State in which the judgment was rendered, in order to arrive at its judgment, has decided a preliminary question concerning the status or legal capacity of natural persons, rights in property arising out of a matrimonial relationship, wills or succession in a way that conflicts with a rule of the private international law of the State in which the recognition is sought, unless the same result would have been reached by the application of the rules of private international law of that State; (5) The judgment is irreconcilable with an earlier judgment rendered in a non-Contracting State involving the same cause of action and between the same parties, provided that this latter judgment fulfils the conditions necessary for its recognition in the State in which recognition is sought;
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(6) One of the mandatory rules on jurisdictional competence laid down in the EEX-Regulation has not been respected.
2. Assuming the proper procedure is followed as set out in Section II, briefly summarize the requirements that must be met to enforce a foreign money judgment if no treaty provides for enforcement of judgments from the country of origin.
As noted in Section I under A. and in the Introduction to Section II enforcement of a foreign money judgment that is not covered by a treaty is in principle not possible without initiating normal civil litigation. In Section I under B., case law has been discussed that implies that the lower courts exercise wide discretionary power to decide on the binding force of foreign money judgments that are not covered by a treaty. In general, Dutch courts are sympathetic to de facto recognition of foreign judgments.
With respect to de facto recognition of foreign judgments that are not subject to a treaty at least the following conditions must be met:
(1) the judgment has been rendered by a convenient forum; (2) neither the recognition nor the enforcement is contrary to Netherlands public policy; (3) the defendant was allowed sufficient opportunity to defend his case before the court of origin; and (4) the judgment is final and binding.
B. Detailed Discussion of Requirements
The answers set out below under (a) apply to judgments governed by the European regulation. The answers set out below under (b) relate to judgments not subject to any treaty.
1. Describe any requirements of your country with regard to the jurisdiction (i.e., competence) of the court of origin over the parties and subject matter of the original action.
(a) European regulations
According to Article 35 paragraph 1 EEX-Regulation the Dutch court must examine whether the rules of jurisdictional competence laid
(Rel. 29-2010) THE NETHERLANDS NET-33 down in Sections 3, 4 and 6 of Chapter II of the EEX-Regulation have been respected by the court of origin. Section 3 provides rules that apply in matters relative to insurance (articles 8-14 EEX-Regulation). Section 4 provides rules that apply in matters relative to agreements entered into by consumers in respect of installment sales and loans (articles 15-16 EEX-Regulation). Finally, Section 6, under Article 22 EEX-Regulation, prescribes some exclusive fora. According to article 35 paragraph 3 EEX-Regulation the Dutch courts may not – on the basis of a public order – examine the jurisdictional competence of the court of the Member State in which the judgment was rendered beyond the assessment on the basis of article 35 paragraph 1 EEX-Regulation.
The court should examine ex officio (by virtue of his office) whether the aforementioned rules of jurisdictional competence of the EEX- Regulation have been respected. However, if a defendant voluntarily submitted to the jurisdiction of the court of origin, not solely to contest its jurisdiction, the Dutch court shall not examine this jurisdiction (article 24 EEX-Regulation).
In its examination of the foreign court’s jurisdictional competence, the Dutch court shall be bound by findings of fact on which the court in the Member State of origin based its jurisdictional competence (Article 35 paragraph 1 EEX-Regulation).
As mentioned above, under the other European regulations objections to the jurisdiction assumed by the court that rendered the judgment of which enforcement is sought, do not constitute a ground for the refusal of enforcement of the judgment.
(b) No Treaty
A Dutch court will examine whether the foreign court can be considered a proper forum according to internationally acceptable standards. Generally acceptable are:
(1) the forum prorogatum (the forum contractually agreed to by the parties); (2) the forum rei sitae (in matters relative to real estate); (3) the forum delicti (in matters relative to tort); and (4) the forum of a subsidiary or branch.
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It can be disputed whether the forum arresti (the court of the location where any attachment or garnishment has been made) is a generally accepted forum.
Dutch courts will not examine the jurisdictional competence of the foreign court ex officio, unless the judgment debtor does not appear in the proceedings in The Netherlands. The courts are not bound by findings of fact on which the foreign court has based its jurisdictional competence. Therefore, Dutch courts may carry out an independent examination as to the jurisdictional competence of such foreign court, without being under a general obligation to do so.60
2. Describe any requirements of your country with regard to notice to the defendant in the original action.
(a) European regulations
According to article 24 paragraph 2 EEX-Regulation a judgment will not be recognized if it was rendered in default of appearance and if the defendant was not duly served with the document which instituted the proceedings or with an equivalent document in sufficient time to enable him to arrange for his defense in the proceedings before the court of origin.
If the defendant is domiciled in The Netherlands at the time the court of origin’s proceedings commenced, the Dutch rules with respect to the serving of legal documents should have been complied with. The proper service method is a bailiff (“deurwaarder”) serving by formal notice (“exploit”) the document upon the defendant properly and timely, in order to enable the defendant to be represented by a qualified lawyer in the foreign court. When a request for an exequatur is brought, Dutch courts have the duty to examine whether the documents instituting the proceedings abroad have been timely served upon defendant in The Netherlands or in another country, if the defendant was not resident in The Netherlands.61
60 See Verheul, Erkenning en tenuitvoerlegging van vreemde vonnissen (1989), p. 41. 61 Service should be done in accordance with Article 15 of the Hague Convention on the service abroad of judicial and extrajudicial documents in civil or commercial matters (November 15, 1965, Trb. 1966, 91), which is applicable according to Article 20 of the Brussels and Lugano Convention. Article 15 forces courts of the Brussels and Lugano Conventions’ Contracting States to postpone their judgments until proper
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(b) No Treaty
Similar principles and methods apply in cases where no treaty provides for recognition. Dutch courts put emphasis on the requirement that the foreign procedure must have been “fair” in all respects. This requirement also implies that the foreign court properly stated adequate reasons for its decision.
3. Describe any requirements of your country with regard to finality and non-appealability of the court of origin’s judgment.
(a) European regulations
Article 37 EEX-Regulation provide that a court of a Member State in which recognition is sought of a judgment rendered in another Member State may stay the proceedings if an ordinary appeal against the foreign money judgment has been lodged in the country of origin. A court of a Member State in which recognition is sought of a judgment rendered in Ireland or the United Kingdom may stay the proceedings if enforcement is suspended in the Member State in which the judgment was rendered by reason of an appeal (article 37 paragraph 2 EEX-Regulation).
Article 23 EEO-Regulation, EPO-Regulation and ESC-Regulation provides a similar arrangement with regard to the review procedure as provided for in article 19 EEO-Regulation, article 20 EPO-Regulation and article 18 ESC-Regulation.
(b) No Treaty
A foreign money judgment must be final and binding to be de facto recognized. There must be no remedies available against the foreign judgment.
service of the relevant documents has been established. However, see President District Court The Hague July 16, 1992, NJ 1993, 76.
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4. Describe the position of your country with regard to refusal to enforce a judgment on grounds of public policy, particularly with respect to whether the courts will refuse to enforce a judgment if the original claim could not have been brought under the laws of your country.
(a) European regulations
Article 34 paragraph 1 EEX-Regulation provides that a judgment shall not be recognized if such recognition is contrary to public policy in the State in which recognition is sought. This ground for refusal is to be applied in a restrictive manner.62
Under the EEX-Regulation, the Dutch courts are obliged to respect the law that governs the original action pursuant to the rules of conflicts of law that are in force in the country of origin. Dutch courts do not require that the claim could also have been asserted under Dutch law.
A reason for refusal of recognition akin to the public policy defense is the (supposed) irreconcilability of a foreign judgment with a judgment rendered in a dispute between the same parties in the State in which recognition is sought.63 This ground for refusal has been separately provided for in article 34 paragraph 3 EEX-Regulation and is, therefore, distinct from the “public policy” requirement. However, article 35 paragraph 3 EEX-Regulation states that this ground – public policy – may not be applied in examining whether the rules on jurisdiction were rightly applied by the court of which the judgment is subject to an application for enforcement.
Although public order as a ground for refusal of enforcement is not mentioned in the other European regulations discussed in this report, it is likely that the aforementioned will also apply with regard to these regulations.
62 The most important decision of a Netherlands court in this respect is Supreme Court May 2, 1986, NJ 1987, 481, which stresses the correlation between the requirement of “fair procedure” and “public policy.” See also District Court Roermond June 15, 1989, NIPR 1990, 341. 63 See European Court of Justice February 1, 1988, NJ 1990,209 (Hoffmann v. Krieg).
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(b) No Treaty
A Dutch court will implicitly or explicitly examine whether a foreign judgment is contrary to Dutch public policy (“openbare orde”).64 Case law on the restrictive effect of Dutch public policy is rare.
Dutch courts do not require that the claim could also have been asserted under Dutch law.
5. Describe any requirements of your country with regard to showing reciprocity between the court of origin and your country.
Recognition is not dependent on reciprocity regardless of whether a treaty does or does not apply.
6. Indicate whether the courts of your country will review the merits of the case before granting enforcement.
(a) European regulations
Article 36 EEX-Regulation, article 21 paragraph 2 EEO-Regulation, article 22 paragraph 3 EPO-Regulation and article 22 paragraph 2 ESC-Regulation explicitly provide that under no circumstances may a foreign judgment be reviewed as to its merits. Such review on the merits or the substance of a case is to be distinguished from the Dutch court’s examination as to whether or not one of the grounds for refusal of recognition set out in this Section III under A.I. applies, the latter examination being of a limited scope.
(b) No Treaty
If all requirements for de facto recognition are fulfilled, the Dutch courts will in general not review a foreign judgment as to its substance.65
64 See amongst other District Court Leeuwarden, June 26, 1952, NJ 1953, 503. 65 The case law reported shows that the Dutch courts generally respect this rule. See Court of Appeal The Hague, June 10, 1983, Schip & Schade 1983, 107 and President Court Dordrecht, September 11, 1986, KG 1986, 434, both with respect to a Belgian judgment. An exception to this rule is President District Court Rotterdam, May 9, 1983, Schip & Schade 1983, 118.
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7. Describe whether the courts of your country will examine if the court of origin applied the same rules of law that a court in your country would have followed had it heard the case originally (i.e., the proper choice of law).
Irrespective of whether a treaty does or does not apply, Dutch courts will in general respect foreign rules of private international law applied by the court of origin as well as the manner in which the court of origin applied the lex causae. This does not exclude the public policy-test as set out above under 4.
8. Describe whether enforcement of a judgment will be denied if the underlying cause of action is barred under your country’s statute of limitations.
(a) European regulations
According to the rules of Dutch private international law the lex causae (and not the lex fan) dictates the prescription period (i.e., statute of limitation) with regard to the claims in dispute and it is of no importance whether or not the Dutch rules are identical.66 Therefore, the enforcement of a judgment will not be denied on the ground that the underlying cause of action is barred under Dutch law.
On the other hand, recognition may be refused if Dutch law is the lex causae and if the foreign court overlooked a prescription period under Dutch law.
(b) No Treaty
Same answer as set out here above under 8(a).
9. Describe any other requirements or defenses that could prevent the enforcement of a judgment.
Foreign Money Judgment Ordering Periodic Penalty Payment.
A caveat should be noted for judgments in summary proceedings that grant a plaintiff interim relief and that provide for a periodic
66 See Supreme Court May 27, 1983, NJ 1983, 561 (Avermann v, Vriezema).
(Rel. 29-2010) THE NETHERLANDS NET-39 payment by way of penalty (“dwangsom”). If the defendant does not respect the terms of such a money judgment and if the judgment was rendered by a foreign court, payment of the penalty is only enforceable in The Netherlands (apart from the general requirements set out above) if the court which rendered the original judgment, has determined, in a second judgment, the aggregate amount which is ultimately due under this judgment. This is the rule under the EEX-Regulation (article 49) and one may assume that the same principle will be applied by the Dutch court with regard to applications for enforcement on the basis of other European regulations or treaties applicable to The Netherlands.
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APPENDIX I
Legislative Provisions Governing Enforcement of Foreign Money Judgments67
1. DUTCH CODE OF CIVIL PROCEDURE (unofficial translation)
Article 431
1. Except as provided for in Articles 985 through 994, foreign judgments and foreign authentic deeds shall not be enforced in The Netherlands. 2. Disputes may be litigated again in the Dutch courts.
Article 985
A foreign judgment which is enforceable in The Netherlands by virtue of a Convention or an Act may not be enforced until authorization of enforcement (“exequatur”) has been granted. The case shall not be re-examined on its merits. Jurisdiction in respect of the application for an exequatur shall lie with the court of the district where the defendant is resident and the court of the district in which enforcement is sought.
Article 986
1. The application for an exequatur shall be filed by petition in writing. The petition shall be filed by a procurer and it shall include the applicant’s chosen domicile in the district of the court. 2. An authentic copy of the judgment shall be attached to the petition together with such documents as may prove that the judgment is enforceable in the country in which it was rendered. 3. The court may require legalization of the copy of the judgment and of the other documents mentioned in the second paragraph hereof. The court may also require that the judgment and the other documents be translated into the Dutch language and that
67 Stbl. 1972, no. 240; amended Stbl. 1978, 468. The European regulations (in English) can be found on http://eur-lex.europa.eu/nl/index.htm.
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the translation be certified either by a sworn translator recognized in The Netherlands, or by a sworn translator recognized in the country where the judgment was rendered, or by the diplomatic or consular representative of the country concerned in The Netherlands. 4. If the documents thus submitted are inadequate, the applicant shall be given the opportunity to add further materials.
Article 987
1. The court shall render its decision with all due dispatch but not without hearing, or at least duly summoning, the parties against whom the enforcement is sought. 2. The court shall set date and time of the hearing and the date by which the summons must be served. 3. The summons shall be served by a bailiff acting on behalf of the applicant. The applicant shall furnish the court before or at the hearing with written evidence that the summons has been served. 4. If a person summoned fails to appear in court, the court may order a further summons to be served. The same provision applies if a party has wrongly not been summoned. 5. The applicant and the other parties shall be represented in court by a procurer. 6. A the close of the hearing, the court shall inform the parties when it will render its decision.
Article 988
1. The court’s decision shall contain a statement of reasons and shall be delivered in public. 2. The decision shall be provisionally enforceable without a security being required, unless the court decides otherwise. 3. With regard to the costs, the provisions of Articles 56, 57 and 58 shall apply.
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Article 989
1. The court’s decision shall not be liable to be set aside by a decision of the same court on the request of the party against whom enforcement is sought. 2. Each party may appeal against the decision within one month as of the day following that of the decision. Appeals shall be heard by the Court of Appeal. 3. In the case of an appeal, Articles 986-988 and 989, first paragraph, shall apply by analogy, it being understood that the original applicant shall also be heard or at least be summoned in due form.
Article 990
A judgment rendered on an appeal may be contested by an appeal with the Supreme Court within one month as of the date on which it was rendered. Article 988, first paragraph, and Article 989, first paragraph, shall apply by analogy.
Article 991
[Cancelled]
Article 992
The provisions of this Chapter shall apply only in so far as no convention or statute provide otherwise.
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APPENDIX II
List of Bilateral Agreements and Conventions (other than the Brussels and Lugano Conventions) on Enforcement of Foreign Money Judgments
The Netherlands is a contracting party to a number of bilateral agreements and conventions which in whole or in part deal with enforcement of money judgments in civil and commercial matters. No reference is made to conventions in the field of transport nor to the treaties in respect of family matters.
A. Bilateral Agreements
1. Belgium-Netherlands (March 28, 1925, Stb. 1929, 250 and 405); 2. Italy-Netherlands (April 17, 1959, Trb. 1959, 137 and 1963, 56); 3. Germany-Netherlands (August 30, 1962, Trb. 1963, 50 and 1965, 155); 4. Austria-Netherlands (February 6, 1963, Trb. 1963, 51, 1966, 135 and 1988, 44); 5. United Kingdom-Netherlands (November 17, 1967, Trb. 1967, 197, 1970, 175, 1975, 8, 1977, 184 and 1987, 56); 6. Surinam-Netherlands (August 27, 1976, Trb. 1976, 144).
The Agreements with Belgium, Italy, Germany and the United Kingdom do not apply in cases in which the Brussels Convention is applicable.
The Agreements with Germany, the United Kingdom and Surinam contain a special procedure with respect to the recognition of a judgment from the other country and with respect to the application for an exequatur. As a consequence, the application of the Articles 985- 992 CCP is excluded.
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B. Other Conventions That in Part Deal with Questions of Enforcement of Costs of Procedure
1. The Hague Convention on Civil Procedure (July 17, 1905, Stb. 1909, 120), which is relevant for The Netherlands solely vis-à- vis Iceland; 2. The Hague Convention on Civil Procedure (March 1, 1954, Trb. 1954, 40); 3. Bilateral Agreements between:
* United Kingdom-Netherlands (treaty dated November 17, 1967, Stb. 1969, 44), which are also applicable to Guernsey, Jersey and Island Man, this treaty is to be distinguished from the regulations set out above under A.
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APPENDIX III
Bibliography
F.M.J. Jansen, Executie- en beslagrecht, fourth edition 1990, W.E.J. Tjeenk Willink, Zwolle (pp. 279-293). F.M.J. Jansen, Burgerlijke Rechtsvordering, comments on Article 431 and Article 985-994 CCP, loose leaf edition, Kluwer, Deventer. D. Kokkini-Iatridou and J.P. Verheul, Les effets des jugements et sentences estrangers aux Pays-Bas, Kluwer, Deventer, 1970. D. Kokkini-Iatridou, Internationaal Privaatrecht, Case Law Catalogue, WJEJ. Tjeenk Willink, Zwolle, 1987. Koster-Dubbink, Algemeen deel van het Nederlands internationaal privaatrecht, De Erven F. Bohn N.V., Haarlem, 1962 (pp. 767 et seq). M.V. Polak, Vademecum Executie en Beslag, Erkenning en tenuitvoerlegging (Hfst. 73), De Europese verdragen: EEX en EVEX (Hfst 74), Gouda Quint BV, Arnhem 1995. R. van Rooij & M.V. Polak, Private International Law in The Netherlands, T.M.C. Asser Institute, The Hague, and Kluwer Law & Taxation publishers, Deventer-Boston-New York, 1987 (pp. 30-35 (enforcement pursuant to a treaty) and pp. 71-75 (non-treaty enforcement)). L. Strikwerda, Inleiding tot het Nederlandse Internationaal Privaatrecht, Kluwer, Deventer, 2008. J.P. Verheul, Aspecten van Nederlands international beslagrecht, Aspects of attachment in Dutch private internationaal law (Ph.D thesis Vrije Universiteit Amsterdam, 1968). J.P. Verheul in collaboration with E. van Schouten and M.C.A. Vis- Plantenga, Erkenning en tenuitvoerlegging van vreemde vonnissen in vermogensrechtelijke zaken, T.M.C. Asser Institute, The Hague, and Maklu, Apeldoom-Antwerpen, 1989. P. Vlas, Burgerlijke Rechtsvordering, comments on Verdragen (Conventions), loose leaf edition, Kluwer, Deventer.
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