Jurisdiction and enforcement abroad: how do you protect your contract?

Whether you can enforce a judgment against a foreign business partner is largely decided when you sign the contract, in the clauses on applicable law and on the court or arbitral tribunal that will hear disputes. Within the EU a judgment from one member state is enforceable in another without any intermediate procedure; outside the EU, and without a treaty, a Dutch or foreign judgment often has to be brought before a court again.

That difference explains why arbitration is often chosen for contracts with parties outside the EU: under the 1958 New York Convention an arbitral award can be enforced in more than 170 states, on narrow grounds of refusal.

Why do jurisdiction and enforcement cause problems in cross-border contracts?

Because two different questions arise: which court may decide the dispute, and whether its decision will be recognised where the other party has its assets. A contract that answers only the first question can leave you with a judgment you cannot use.

Without clear clauses, a dispute easily turns into a preliminary fight about where the case should be heard. A counterparty may also start proceedings in its own country first, in the hope of a more favourable court or simply to delay matters.

The second problem appears at the end. A Dutch judgment against a company whose bank accounts, property and receivables are all in another country is only worth something if that country recognises and enforces it. Whether it does depends on EU law, on treaties and, where neither applies, on the national law of that country.

An example to illustrate: a Dutch supplier delivers machinery to a buyer outside the EU and wins a judgment for the unpaid price at the Dutch court named in the contract. The buyer has no assets in the Netherlands. If the buyer’s country has no treaty with the Netherlands on the recognition of judgments, the supplier must start new proceedings there, with local lawyers, translations and the risk that the local court examines the case again. An arbitration clause would in many cases have given a more direct route to enforcement.

What should you check before you sign?

Check who exactly you are contracting with, where that party has its assets, and whether a judgment or arbitral award from your chosen forum can be enforced there. The answers determine which clauses you need.

Start with the identity of the counterparty. Check the company in the commercial register of its home country, confirm who is authorised to sign on its behalf, and find out whether the contracting entity actually holds assets or whether these sit with a parent or sister company. A judgment against an empty shell is of little use. If the assets lie elsewhere in the group, consider a parent company guarantee or other security.

Then check whether the country of enforcement is an EU member state, a party to the Lugano Convention, to one of the Hague Conventions discussed below or to the New York Convention. The answer tells you whether a court clause is sufficient or whether arbitration is the safer route.

How do you choose the applicable law?

By naming the law of one specific country in the contract. Within the EU, the Rome I Regulation (Regulation (EC) 593/2008) gives effect to that choice in almost all commercial contracts.

Under Article 3 of Rome I, the parties are free to choose the law that governs their contract. If they make no choice, Article 4 determines the applicable law: for a sale of goods, for example, the law of the country where the seller has its habitual residence, and for a service contract, the law of the country of the service provider. That default may not be the law you would have chosen.

Avoid vague formulations such as “governed by international commercial principles”. Name one country: “This agreement is governed by the laws of the Netherlands.”

Include non-contractual claims as well. Disputes about a contract are often also framed as claims in tort, for example for misrepresentation. Under Article 14 of the Rome II Regulation (Regulation (EC) 864/2007), parties who all pursue a commercial activity may choose in advance, in a freely negotiated agreement, the law that governs such claims.

A choice of law has limits. Overriding mandatory provisions (Article 9 Rome I), such as certain rules on commercial agents, sanctions or competition law, can apply regardless of the chosen law. Consumers and employees keep the protection of the mandatory rules of their own country (Articles 6 and 8 Rome I). A Dutch employer cannot, for example, take away the protection of Dutch dismissal law from an employee who habitually works in the Netherlands simply by choosing another law.

How do you choose the competent court?

With a forum clause that names a specific court and states that its jurisdiction is exclusive. Within the EU, Article 25 of the Brussels I bis Regulation (Regulation (EU) 1215/2012) gives effect to such a clause, regardless of where the parties are domiciled.

Without a forum clause, the general rules apply. Under the Brussels I bis Regulation, a defendant can in principle be sued in the courts of the member state where it is domiciled (Article 4). In contractual matters, the claimant can also sue in the courts of the place where the obligation in question was or should have been performed, which for a sale of goods is the place where the goods were or should have been delivered (Article 7(1)). This can lead to several competent courts, and the party that files first often gains an advantage.

A forum clause takes that uncertainty away. The Regulation also protects it: if proceedings are started in another member state in breach of an exclusive choice of court, the court of the other member state must stay its proceedings until the chosen court has decided on its jurisdiction (Article 31(2)). The full text of the Regulation is on EUR-Lex.

A choice of court has limits too. For insurance, consumer and employment contracts, the Regulation restricts choice-of-court agreements to protect the weaker party (Articles 15, 19 and 23). Some disputes fall under exclusive jurisdiction that cannot be changed by agreement, such as disputes about rights in rem in immovable property, which belong to the courts of the country where the property is located (Article 24). And if a defendant appears in court without contesting jurisdiction, that court becomes competent even if the contract named another court (Article 26).

Exclusive or non-exclusive jurisdiction?

An exclusive clause means that disputes may only be brought before the chosen court. A non-exclusive clause allows proceedings there, but does not prevent proceedings elsewhere.

For most international commercial contracts, an exclusive clause is the right choice, because it gives certainty and prevents a race to the courthouse. Under Article 25 of the Brussels I bis Regulation, a choice of court is exclusive unless the parties agree otherwise, but it is better to say so expressly.

A non-exclusive or one-sided clause can be useful if you want to keep the option of suing the counterparty in its home country, where its assets are. A common variant gives one party the right to sue in several courts, while the other party can only sue in one. Such asymmetric clauses are not accepted everywhere, so have them checked against the law of the countries concerned.

Drafting the clauses

A clause that says “disputes shall be handled in the Netherlands” leaves open which court is meant and whether the choice is exclusive. Name the court and cover non-contractual claims as well. Two examples of clauses that hold up:

Governing law: “This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by the laws of the Netherlands.”

Jurisdiction: “The courts of Amsterdam, the Netherlands, shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation.”

A contract governed by Dutch law with jurisdiction for a court elsewhere is possible, but that court must then establish and apply Dutch law, which usually requires expert evidence.

English-language proceedings in the Netherlands

If you want a Dutch court but proceedings in English, you can choose the Netherlands Commercial Court (NCC). The NCC is a chamber of the Amsterdam District Court and Court of Appeal that hears international commercial disputes in English, and its judgments are issued in English.

The NCC only hears a case if the parties have expressly agreed in writing to proceedings before it. That agreement can be included in the contract or made after a dispute has arisen. A judgment of the NCC is a Dutch judgment and is enforced in the same way as any other Dutch court decision.

Choosing a court outside the EU

If the chosen court is outside the EU, or the dispute otherwise falls outside the Brussels I bis Regulation, the effect of the clause depends on the national law of the court seized and on treaties. The 2005 Hague Convention on Choice of Court Agreements then plays an important role.

That Convention applies between its contracting states, which include the EU member states, the United Kingdom, Singapore and Mexico. It requires the chosen court to hear the case, requires other courts to decline jurisdiction and requires the judgment of the chosen court to be recognised and enforced in the other contracting states. It only covers exclusive choice-of-court agreements in business-to-business contracts. For contracts with UK parties, it has become particularly relevant since the Brussels I bis Regulation ceased to apply to the United Kingdom at the end of 2020.

Should you choose arbitration or a court?

Choose arbitration if the counterparty and its assets are outside the EU, or if confidentiality and specialist decision-makers matter to you. Choose a court if you want a full right of appeal, if the dispute is relatively small, or if the counterparty is within the EU.

The advantages of arbitration

The main advantage of arbitration in international contracts is enforceability. Under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958, the New York Convention, the courts of more than 170 contracting states must recognise and enforce arbitral awards made in other contracting states. They may refuse only on the limited grounds listed in Article V of the Convention, such as the invalidity of the arbitration agreement, a serious breach of the right to be heard, or a conflict with public policy.

Arbitration also offers neutrality, because neither party has to litigate before the courts of the other party’s country. The parties can choose arbitrators with knowledge of the sector, for example construction, energy or technology, and can agree on the language and the place of the proceedings. Arbitration is usually confidential, which matters if the dispute concerns trade secrets or sensitive commercial information.

When a court is the better choice

Arbitration has disadvantages too. An arbitral award can only be set aside on narrow grounds, not because the arbitrators got the facts or the law wrong, unless the parties have agreed on an appeal in arbitration. The parties pay the fees of the arbitrators and the arbitral institution, which in a smaller dispute can exceed the costs of court proceedings.

A court judgment can in principle be appealed on the merits. In the Netherlands, the appeal period in ordinary civil proceedings is three months from the date of the judgment (Article 339 of the Dutch Code of Civil Procedure (Rv)). Court fees are fixed and generally lower than the costs of arbitration. And within the EU, a court judgment is enforceable in every member state almost as easily as an arbitral award, so the enforcement advantage of arbitration largely disappears.

Our article on litigation in the Dutch courts explains how civil proceedings work in the Netherlands, and our overview of types of commercial agreements discusses the other clauses that deserve attention in international contracts.

Urgent measures are available in both routes

An arbitration clause does not prevent you from asking a Dutch court for urgent measures. Under Article 1022a Rv, an arbitration agreement does not preclude a request for provisional measures, such as an order in summary proceedings (kort geding) or leave for a pre-judgment attachment.

In the Netherlands you can ask the preliminary relief judge (voorzieningenrechter) for leave to attach assets before judgment (conservatoir beslag, Article 700 Rv). The judge decides on the basis of your petition, usually within days and without hearing the debtor. You must then start the main proceedings, in court or in arbitration, within the period set by the judge, which is at least 14 days.

For bank accounts in other EU member states (except Denmark), you can apply for a European Account Preservation Order under Regulation (EU) 655/2014. This allows a court in one member state to freeze funds in a bank account in another member state, without the debtor being warned in advance.

Drafting an arbitration clause

Use the model clause of the arbitral institution you choose and complete it with the seat of arbitration, the number of arbitrators and the language. A clause that only says “disputes will be resolved by arbitration” leaves too much open.

Well-known institutions such as the International Chamber of Commerce (ICC), the London Court of International Arbitration (LCIA) and the Netherlands Arbitration Institute (NAI) publish model clauses. The seat of arbitration is especially important, because it determines which national arbitration law applies and which court can set the award aside. If the seat is in the Netherlands, the Dutch Arbitration Act in Book 4 of the Code of Civil Procedure applies. A claim to set aside an award must then be brought within three months after the award has been sent to the parties (Article 1064a Rv).

How is a judgment enforced within the EU?

Directly. Under the Brussels I bis Regulation, a judgment given in one member state is recognised in the other member states without any special procedure (Article 36) and is enforceable there without a declaration of enforceability (Article 39).

In practice you ask the court that gave the judgment for a certificate under Article 53 of the Regulation. You then present the judgment and the certificate to the enforcement authorities in the other member state, in the Netherlands a bailiff (gerechtsdeurwaarder). The certificate must be served on the debtor before the first enforcement measure (Article 43). A translation may be required.

The debtor can ask the court in the member state of enforcement to refuse enforcement, but only on the limited grounds in Article 45. These include a manifest conflict with public policy, a default judgment where the defendant was not served in time to arrange a defence, a conflict with another judgment between the same parties, and a breach of the protective jurisdiction rules for consumers, employees and insured persons. The court may not review the substance of the judgment.

For Switzerland, Norway and Iceland, the Lugano Convention of 2007 provides a comparable system, although enforcement there still requires a declaration of enforceability. Denmark applies the Brussels I bis Regulation on the basis of a separate agreement with the EU.

How is a judgment enforced outside the EU?

That depends on the treaties between the countries and, where there are none, on the national law of the country of enforcement. Outside the EU, enforcement is less certain, slower and more expensive.

The Hague Judgments Convention

The 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters entered into force on 1 September 2023 for the EU, including the Netherlands, and for Ukraine. Uruguay followed on 1 October 2024 and the United Kingdom on 1 July 2025, and other states are joining. The Convention provides for the recognition of civil and commercial judgments between contracting states if the judgment has a sufficient connection with the state of origin, for example because the defendant lived or had its principal place of business there, or expressly accepted the court’s jurisdiction.

The Convention only applies to judgments in proceedings started after it entered into force between the two states concerned. For older cases, and for states that are not a party, you must rely on other treaties or on national law. The United States has signed the Convention but has not ratified it.

Foreign judgments without a treaty in the Netherlands

The Netherlands has no general statutory regime for the recognition of judgments from countries with which no treaty applies. Under Article 431 Rv, such a judgment cannot be enforced in the Netherlands as such; the creditor must bring the case before a Dutch court again.

The Dutch court will, however, generally follow the foreign judgment without reviewing the merits if four conditions are met, as the Supreme Court (Hoge Raad) held in its Gazprombank judgment of 26 September 2014 (ECLI:NL:HR:2014:2838). The foreign court must have based its jurisdiction on a ground that is generally acceptable by international standards; the foreign proceedings must have met the requirements of due process; recognition must not be contrary to Dutch public policy; and the judgment must not be irreconcilable with a Dutch judgment or an earlier foreign judgment between the same parties that is eligible for recognition. For the procedure in more detail, see our guide on enforcing a foreign judgment in the Netherlands.

Dutch judgments in other countries

The same problem arises in reverse. A Dutch judgment is not automatically enforceable in a country outside the EU and the Lugano area that is not a party to a relevant treaty. In the United States, for example, recognition of a foreign money judgment is governed by the law of the individual state; you generally need separate recognition proceedings there, although the court does not usually review the merits again.

This is why the location of the counterparty’s assets should determine the choice between a court and arbitration. If those assets are in a country that enforces arbitral awards under the New York Convention but has no treaty on judgments with the Netherlands, arbitration is usually the stronger route.

How long can you enforce a judgment?

In the Netherlands, the right to enforce a court judgment becomes time-barred 20 years after the day following the judgment (Article 3:324 of the Dutch Civil Code (BW)). The limitation period can be interrupted, for example by serving a demand for payment through a bailiff.

What should you check as the claimant?

As the party with the claim, act on the forum clause and the assets first. Under Article 700 Rv you can seek leave for a pre-judgment attachment, and you must then start the main proceedings within the period set by the judge, at least 14 days.

• Which law and which court or arbitral tribunal the contract names, and whether the choice is exclusive.
• Where the counterparty’s bank accounts, property and receivables are, and in which group entity.
• Whether the contract requires a notice of default, a negotiation period or mediation before proceedings.
• Whether you need a pre-judgment attachment or a European Account Preservation Order before you negotiate.
• Whether a judgment or award can be enforced where the assets are: Brussels I bis, Lugano, the Hague Conventions or the New York Convention.

What should you check as the defendant?

As the party being sued, check jurisdiction before anything else. Under Article 26 of the Brussels I bis Regulation, a court becomes competent if you appear without contesting its jurisdiction.

• Whether the court seized is the court named in the contract; if not, raise lack of jurisdiction in your first defence.
• Whether an exclusive choice of court allows you to ask for a stay under Article 31(2) Brussels I bis.
• Whether an arbitration clause applies, so that the court must decline jurisdiction if you invoke it before any other defence.
• Which deadlines run, such as the three-month appeal period of Article 339 Rv.
• Whether grounds for refusal of enforcement exist under Article 45 Brussels I bis or Article V of the New York Convention.

What can we do for you with jurisdiction and enforcement?

Our civil lawyers advise Dutch and international companies on cross-border contracts and disputes.

• We draft or review the choice-of-law, jurisdiction and arbitration clauses in your contract.
• We check where your counterparty’s assets are and whether a judgment or award can be enforced there.
• We apply for leave for a pre-judgment attachment with the preliminary relief judge, usually within days.
• We obtain the Article 53 certificate and instruct a bailiff for enforcement in another member state.
• We conduct proceedings under Article 431 Rv to enforce a foreign judgment in the Netherlands.

Summary

• Name the law of one country and one specific court, and make the court’s jurisdiction exclusive.
• Within the EU, judgments are enforceable in other member states without a separate procedure under the Brussels I bis Regulation.
• Outside the EU, enforcement depends on treaties such as the 2005 and 2019 Hague Conventions or on national law; in the Netherlands, Article 431 Rv and the Gazprombank criteria apply.
• Arbitration awards can be enforced in more than 170 states under the New York Convention, which makes arbitration attractive when assets are outside the EU.
• An arbitration clause does not prevent urgent measures such as a pre-judgment attachment in the Netherlands.

Frequently asked questions