Recognition and enforcement of foreign judgments in the Netherlands

This article is about judgments given by foreign courts. For arbitral awards, including an award that has been annulled in the country of origin, see our article on recognition and enforcement of an annulled arbitral award.

Can a foreign judgment be enforced in the Netherlands?

Only if a treaty or a law says so. The starting point of Dutch law is that a foreign judgment cannot be enforced in the Netherlands. The main exception: within the EU, many judgments can be enforced on the basis of an EU regulation, sometimes without any separate Dutch procedure. Where no treaty or regulation applies, you start new proceedings before the Dutch court. That court will usually follow the foreign judgment if it meets four minimum requirements set by the Supreme Court (Hoge Raad).

This question comes up whenever a dispute involves parties in more than one country. Below we explain which rules apply, which route you need and what the Dutch court will check.

What does Article 431 of the Dutch Code of Civil Procedure say?

Article 431 of the Dutch Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering, DCCP) is the central provision. It contains a basic rule on enforcement and an alternative route for judgments that cannot be enforced. In translation, it reads:

‘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.’

The first paragraph deals with enforcement. The second paragraph deals with what you can do if enforcement is not possible.

When is a foreign judgment enforceable under Article 431(1) DCCP?

Only in the cases covered by Articles 985-994 DCCP. The first paragraph of Article 431 DCCP is clear: the basic principle is that foreign judgments cannot be enforced in the Netherlands. The exception lies in the cases provided for in Articles 985-994 DCCP.

Articles 985-994 DCCP set out the general procedure for enforcing enforceable titles from foreign states. This procedure is known as the exequatur procedure. According to Article 985(1) DCCP, it applies only if a decision of a court of a foreign state is enforceable in the Netherlands by virtue of a treaty or by virtue of the law.

Which EU regulations are relevant?

At EU level, several regulations deal with the recognition and enforcement of judgments between Member States. Examples are:

• Brussels I-bis Regulation (Regulation (EU) No 1215/2012) on civil and commercial matters
• Brussels II-ter Regulation on divorce and parental responsibility
• Maintenance Regulation on child and spousal maintenance
• Matrimonial Property Regimes Regulation on the property of married couples
• Registered Partnerships Regulation on the property of registered partners
• Succession Regulation on cross-border inheritance

For civil and commercial matters, the Brussels I-bis Regulation goes furthest. Under Article 36(1), a judgment given in one Member State is recognised in the other Member States without any special procedure. Under Article 39, a judgment that is enforceable in its Member State of origin is also enforceable in the other Member States without any declaration of enforceability. This regime applies from 10 January 2015. Not every regulation goes this far: under some of the other regulations, you still need a declaration of enforceability. Which regime applies therefore depends on the subject of the judgment and the regulation that covers it.

Do you still need leave from the Dutch court?

Often yes, outside the Brussels I-bis regime. If a foreign judgment is enforceable in the Netherlands by virtue of a treaty or law that still requires leave, it is not automatically an enforceable order. You must first ask the Dutch court to grant leave for enforcement (exequatur) under Article 985 DCCP.

The court does not re-examine the case itself. It only checks whether the conditions for granting leave are met. Those criteria are set out in the treaty or law under which the decision is enforceable.

What if there is no treaty? Recognition under Article 431(2) DCCP

Then you start new proceedings before the Dutch court. If there is no enforcement treaty or regulation between the Netherlands and the foreign state, a foreign judgment cannot be enforced under Article 431(1) DCCP.

A Russian judgment is an example. There is no treaty between the Kingdom of the Netherlands and the Russian Federation on the mutual recognition and enforcement of judgments in civil and commercial matters. The Gazprombank case discussed below concerned such a Russian judgment.

Article 431(2) DCCP offers an alternative. The party in whose favour the foreign judgment was given may bring the case again before the Dutch court and ask for a comparable decision that can be enforced. The fact that a foreign court has already ruled on the same dispute does not prevent this.

What will the Dutch court check?

The Dutch court decides in each case whether, and to what extent, it gives authority to the foreign judgment. This principle goes back to the Bontmantel judgment of the Supreme Court (HR 14 November 1924, NJ 1925, Bontmantel).

In its judgment of 26 September 2014 (ECLI:NL:HR:2014:2838, Gazprombank), the Supreme Court set out the minimum requirements. A foreign judgment that has become final (res judicata) is recognised in the Netherlands if:

1. the foreign court based its jurisdiction on a ground that is generally acceptable by international standards;
2. the foreign judgment was given in proceedings that meet the requirements of a proper and fair trial with sufficient safeguards;
3. recognition of the foreign judgment is not contrary to Dutch public policy;
4. the foreign judgment is not incompatible with a Dutch judgment between the same parties, or with an earlier foreign judgment between the same parties on the same subject and based on the same cause.

In a later judgment of 29 September 2023 (ECLI:NL:HR:2023:1265), the Supreme Court drew on the 2019 Hague Judgments Convention to explain when a foreign judgment counts as final. That convention entered into force on 1 September 2023, initially between the EU Member States and Ukraine.

What happens if the requirements are met?

The Dutch court then does not examine the case again on the merits. It can simply order the other party to do what the foreign court already ordered.

Note that, under this system developed in case law, the foreign judgment itself is not declared enforceable. Instead, the Dutch court gives a new judgment with the same order as the foreign judgment. You then enforce that Dutch judgment.

What happens if the requirements are not met?

Then the Dutch court must deal with the case on the merits. It decides for itself what evidential value, if any, the foreign judgment has. That is left to the court’s discretion.

The public policy test and the fair trial test are closely linked. Case law shows that the Dutch court attaches great weight to the right to be heard. If the foreign judgment was given in breach of that right, recognition will probably be refused because it is contrary to public policy.

What are your next steps?

First establish whether a treaty or an EU regulation applies to your judgment. That determines whether you can enforce directly, need leave from the court, or must start new proceedings under Article 431(2) DCCP. Then check whether the foreign judgment is final and whether the foreign proceedings were fair. The lawyers of Law & More assist in exequatur applications and in new proceedings under Article 431(2) DCCP.

In summary

• Under Article 431(1) DCCP, a foreign judgment cannot be enforced in the Netherlands unless a treaty or law provides otherwise.
• Under the Brussels I-bis Regulation, judgments from other EU Member States in civil and commercial matters are enforceable without a declaration of enforceability.
• Where a treaty or law still requires leave, you apply to the Dutch court for exequatur under Article 985 DCCP; the case is not re-examined.
• Without a treaty, you start new proceedings under Article 431(2) DCCP. The court follows the foreign judgment if the four Gazprombank requirements are met.
• If those requirements are not met, the court decides the case on the merits and decides freely what weight the foreign judgment has.

Unsure where you stand? Tell us about your situation. We will let you know your options within one working day.

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