Enforcement of foreign judgments in The Netherlands (excluding arbitration)

Introduction
Enforcing a court judgment across borders can be a complex endeavor, but The Netherlands provides a robust framework to facilitate this process. This article explores the key procedures and legal principles that govern the enforcement of foreign judgments in The Netherlands.

When assessing the possibility of enforcing a foreign judgment in The Netherlands, a distinction can be made between foreign judgments:

1. rendered in an EU country (ex Denmark), which are governed by the Brussels I Bis Regulation (recast);
2. rendered in another country with which The Netherlands has entered into a convention or treaty; or
3. rendered in another country with which The Netherlands has not entered into a convention or treaty.

Category 1. EU judgments (ex Denmark)
Judgments rendered in any EU country (excluding Denmark) are enforceable in The Netherlands without the need to obtain further leave (exequatur). A Dutch bailiff must be provided with (1) a copy of the judgment that fulfils the requirements to establish its authenticity and (2) a certificate of enforceability provided by the Court of the state of origin.

The debtor, being confronted with enforcement measures, does however have the option to initiate legal proceedings and request refusal of the enforcement. The enforcement is refused if:

• recognition would be contrary to Dutch public order;
• the document which initiated the proceedings was not served on the defendant – against who a default judgment was rendered – as was necessary for his defense, unless the defendant did not submit an appeal against the judgment despite having had the possibility to do so;
• the judgment is irreconcilable with a judgment given between the same parties in The Netherlands; or
• the judgment is irreconcilable with an earlier judgment given in another Member State or in a third state involving the same cause of action and between the same parties, provided that the earlier judgment fulfils the conditions necessary for its recognition in The Netherlands.

List of parties to Brussel I Bis Regulation (recast):
Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Portugal, Poland, Romania, Slovakia, Slovenia, Spain, Sweden.
 
Category 2. judgments rendered in another country with which The Netherlands has entered into a convention or treaty
The formalities related to enforcement of judgments rendered in another country with which The Netherlands has entered into a treaty are determined by the applicable treaty. Where such treaty refers to domestic law, this means a petition for enforcement must be filed with the Dutch courts (so-called ‘exequatur’ proceedings). The petition must be accompanied by a certified copy of the judgment and (a) document(s) proving that the judgment is enforceable in the country of origin. A Dutch court will not review the case on the merits, but will determine if the conditions for enforcement as laid down in the applicable treaty are fulfilled. The Dutch court will grant the debtor an opportunity to submit a defense against enforcement. The grounds for refusal of the foreign enforcement are provided in the relevant treaties. For example, it follows from the Lugano Convention that a judgment shall not be enforced if its recognition would be

• manifestly contrary to Dutch public order;
• the judgment was given in default of appearance, if the defendant was not served with a document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant failed to commence proceedings to challenge the judgment when it was possible for him to do so;
• if it is irreconcilable with a judgment given in a dispute between the same parties in The Netherlands; and
• if it is irreconcilable with an earlier judgment given in another state bound by the Lugano Convention or a third state involving the same cause of action and between the same parties, provided that the earlier judgment fulfills the conditions necessary for its recognition in The Netherlands.

List of parties to Lugano Convention:
Denmark, Iceland, Norway, Switzerland.

List of parties to Hague Choice of Court Convention:
Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Mexico, Montenegro, Poland, Portugal, Romania, Singapore, Slovakia, Slovenia, Spain, Sweden, United Kingdom.

List of Parties to the Hague Judgements Convention:
Albania, Cyprus, Kuwait, Portugal.

List of countries with which The Netherlands has entered into a bilateral enforcement treaty:
Albania, Chile, Guernsey, Isle of Man, Jersey, Kuwait, Liechtenstein, Mexico, Suriname.

The Kingdom of The Netherlands
Furthermore, it is noted for the sake of completeness that The Kingdom of The Netherlands consists of several regions, being, apart from the Netherlands, Aruba, Curacao and St Martin and some public entities with a status comparable to a municipality in the Netherlands, which are Bonaire, St Eustace and Saba. Judgments from these regions or entities are considered domestic and are enforceable in The Netherlands.

Category 3. judgments rendered in another country without a treaty
Judgments from any other country without a treaty are not enforceable and need to be re-litigated in The Netherlands. However, a Dutch court will not review substance if the foreign proceedings and judgment fulfil certain criteria determined in Dutch case law, i.e.

• the jurisdiction of the court that rendered the judgment is based on a ground of jurisdiction that is generally acceptable under international standards;
• the foreign judgment is the result of legal proceedings that fulfil the requirements of due process;
• the enforcement of the foreign judgment is not contrary to Dutch public order; and
• the foreign judgment is not irreconcilable with any matter between the same parties or with any earlier judgment by a foreign court in a matter between the same parties in a dispute regarding the same subject matter, provided that such earlier judgment is eligible for enforcement in The Netherlands. When one or more of these criteria are not fulfilled, a Dutch court will perform a substantive re-evaluation of the case.

Brexit
Following Brexit, the UK is no longer party to the Brussels I Bis Regulation (recast). Therefore, judgements from the UK fall within Category 3), unless the Hague Choice of Court Convention applies. It follows from lower case law that the Brussels Convention and the bilateral treaty between the UK and The Netherlands have not revived as a result of Brexit.
 
We are at your disposal in case you have any questions in relation to enforcement of a foreign judgement in The Netherlands.