Can a judgment rendered abroad be recognized and/or enforced in the Netherlands? This is a frequently asked question in legal practice that regularly deals with international parties and disputes. The answer to this question is not unequivocal. The doctrine of recognition and enforcement of foreign judgments is quite complex due to various laws and regulations. This blog provides a brief explanation of the applicable laws and regulations in the context of recognition for the enforcement of foreign judgments in the Netherlands. Based on that, the above question will be answered in this blog.
When it comes to recognition and enforcement of foreign judgments, Article 431 of the Code of Civil Procedure (DCCP) is central in the Netherlands. This stipulates the following:
‘1. Subject to the provisions of Articles 985-994, neither decisions rendered by foreign courts nor authentic instruments drawn up outside the Netherlands can be enforced in the Netherlands.
2. The cases can be heard and settled again in the Dutch court.’
Article 431 paragraph 1 DCCP – enforcement of a foreign judgment
The first paragraph of art. 431 DCCP deals with the enforcement of foreign judgments and is clear: the basic principle is that foreign judgments can not be enforced in the Netherlands. However, the first paragraph of the abovementioned article goes further and provides that there is also an exception to the basic principle, namely in the cases provided for in Articles 985-994 DCCP.
Articles 985-994 DCCP contain general rules for the procedure for the enforcement of enforceable titles created in foreign States. These general rules, also known as the exequatur procedure, apply according to Article 985(1) DCCP only in the event that ‘a decision given by the court of a foreign State is enforceable in the Netherlands by virtue of a treaty or by virtue of the law’.
At European (EU) level, for example, the following relevant regulations exist in this context:
- EEX Regulation on International Civil and Commercial Matters
- Ibis Regulation on International Divorce and Parental Responsibility
- Alimony Regulation on International Child and Spouse Maintenance
- Matrimonial Property Law Regulation on International Matrimonial Property Law
- Partnership Regulation on International Partnership Property Law
- Inheritance Ordinance on International Succession Law
If a foreign judgment is enforceable in the Netherlands by virtue of a law or treaty, then that decision does not automatically constitute an enforceable order, so that it can be enforced. To this end, the Dutch court must first be requested to grant the leave for enforcement described in Article 985 DCCP. That does not mean that the case will be re-examined. That is not the case, according to article 985 Rv. There are, however, criteria on the basis of which the court assesses whether or not leave will be granted. The exact criteria are specified in the law or treaty on the basis of which the decision is enforceable.
Article 431 paragraph 2 DCCP – recognition of a foreign judgment
In the event that there is no enforcement treaty between the Netherlands and the foreign State, a foreign judgment pursuant to art. 431 paragraph 1 DCCP in the Netherlands not eligible for enforcement. An example of this is a Russian judgment. After all, there is no treaty between the Kingdom of the Netherlands and the Russian Federation regulating the mutual recognition and enforcement of judgments in civil and commercial matters.
If a party nevertheless wishes to enforce a foreign judgment that is not enforceable by virtue of a treaty or law, Article 431 paragraph 2 DCCP offers an alternative. The second paragraph of Article 431 DCCP provides that a party, for whose benefit the sentence has been pronounced in the foreign judgment, may bring the proceedings again before the Dutch court, in order to obtain a comparable decision that can be enforced. The fact that a foreign court has already decided on the same dispute does not prevent the dispute from being brought before the Dutch court again.
In these new proceedings pursuant to Article 431, paragraph 2 DCCP, the Dutch court will ‘assess in each particular case whether and to what extent authority should be attributed to a foreign judgment’ (HR 14 November 1924, NJ 1925, Bontmantel). The basic principle here is that a foreign judgment (which has acquired the force of res judicata) is recognized in the Netherlands if the following minimum requirements have been developed in the judgment of the Supreme Court of 26 September 2014 (ECLI:NL:HR:2014:2838, Gazprombank) is completed:
- the jurisdiction of the court that rendered the foreign judgment rests on a ground of jurisdiction generally acceptable by international standards;
- the foreign judgment has been reached in a judicial procedure that meets the requirements of due process of law and with sufficient guarantees;
- the recognition of the foreign judgment is not contrary to Dutch public order;
- there is no question of a situation in which the foreign judgment is incompatible with a decision of a Dutch court given between the parties, or with a previous decision of a foreign court given between the same parties in a dispute concerning the same subject and is based on the same cause.
If the abovementioned conditions are met, a substantive handling of the case may not be taken and the Dutch court may suffice with a conviction of the other party to that to which it was already sentenced in the foreign judgment. Please note that in this system, developed in case law, the foreign judgment is not declared ‘enforceable’, but a new conviction is given in a Dutch judgment that corresponds to the conviction in the foreign judgment.
If conditions a) to d) are not met, the content of the case will still have to be dealt with by the court substantially. Whether and, if so, what evidential value should be assigned to the foreign judgment (not eligible for recognition) is left to the discretion of the judge. It does appear from case law that when it comes to the condition of public order, the Dutch court attaches value to the principle of the right to be heard. This means that if the foreign judgment has been made in violation of this principle, its recognition will probably be contrary to public policy.
Are you involved in an international legal dispute, and do you want your foreign judgment to be recognized or enforced in the Netherlands? Please contact Law & More. At Law & More, we understand that international legal disputes are complex and can have far-reaching consequences for the parties. That is why Law & More’s lawyers use a personal, but adequate approach. Together with you, they analyze your situation and outline the next steps to be taken. If necessary, our lawyers, who are experts in the field of international and procedural law, are also happy to assist you in any recognition or enforcement proceedings.