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Dutch private international law draws from many different sources: international treaties, European regulations, national legislation and unwritten law. In addition, the various international treaties and European regulations each have their own scope of application, depending on the subject of the legal question, the territory and the time. This makes private international law a complex area. This complexity also applies to the specific part of private international law that deals with the recognition and enforcement of foreign judicial decisions and authentic instruments.

A number of sources relevant to Dutch legal practice with respect to the recognition and enforcement in the area of property & commercial law are the Brussels Ibis Regulation, the Lugano Convention (in relation to Switzerland, Iceland and Norway), the Hague Choice-of-Court Convention 2005 (in relation to Mexico, Singapore and Montenegro), a number of bilateral treaties, and for cases outside the scope of treaties and regulations, Dutch private international law with Article 431 Rv as an important rule (for guiding case law regarding this article in particular, see HR 26 September 2014, ECLI:NL:HR:2014:2838, NJ 2015/478, Gazprombank). Within the area of family law, more specifically divorce and parental responsibility, the Brussels Ibis Regulation, among others, is of great importance.

The law on recognition and enforcement keeps developing. E.g. there are two aspects that have received particular attention recently:

First, the Convention of the Hague Conference on Private International Law adopted in 2019: Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (hereinafter: the Judgments Convention). As can already be inferred from the title, the Judgments Convention concerns the recognition and enforcement of foreign judgments in civil and commercial matters. The aim of the Judgments Convention is to promote effective access to the law for all and to facilitate rule-based multilateral trade, investment and mobility.
The relation to Brussels Ibis is that the Judgments Convention will apply in relation to so-called third countries that are party to the Judgments Convention and not between countries within the European Union. In addition, Article 2 of the Judgments Convention contains more exceptions to the subjects it covers than the Brussels Ibis Regulation and therefore has a narrower scope.

The Judgments Convention is a supplement to the 2005 Hague Choice of Court Convention; this means that both instruments contain a regulation on the recognition and enforcement of judgments, but where the Hague Choice of Court Convention is limited to judicial decisions rendered by a court that has international jurisdiction in the event of an exclusive choice of forum, the Judgments Convention also applies between contracting parties in the absence of such an exclusive choice of forum.

The Judgments Convention does not yet apply to the Netherlands and has so far only been signed by Uruguay and Ukraine. This does not mean, however, that the Judgments Convention will remain unimportant to the Netherlands. The European Commission has an initiative for the European Union to sign the Judgments Convention; this means that if this initiative is approved, the Judgments Convention will become part of the PIL acquis of each EU Member State. The proposal for a decision is scheduled for the last quarter of 2020.

The second development relates to Brexit. On 31 January 2020, the United Kingdom will leave the European Union. At the moment, a transitional period applies during which EU rules, including rules on private international law, still apply to the United Kingdom. This transitional period will last until 31 December 2020. Until then, the future relationship between the European Union and the United Kingdom is being negotiated. Despite the uncertainty about this future relationship, the United Kingdom has now acceded to the Hague Choice-of-Court Convention 2005 and the Hague Child Maintenance Convention 2007. These Conventions are currently already in force in the UK due to the (former) EU relationship, and will remain in force in the UK after the transition period. Both conventions have rules on the recognition and enforcement of foreign judgments. It is clear that, with the introduction of these two conventions to the UK, not all jurisdictions are covered. Therefore, it is not possible at this stage to say with certainty what further rules on recognition and enforcement, and in particular the possible application of the Brussels I and Ibis Regulations, will apply between the EU and the UK.

The IJI is closely monitoring these two developments. In addition, IJI staff are involved in the European Commission-funded research project: Regulation BIbis: a standard for free circulation of judgments and mutual trust in the EU (JUDGTRUST), DG Justice (JUST-JCOO-AG-2017), which develops best practices and guidelines for the interpretation and application of the Brussels Ibis Regulation. The project is coordinated by the Asser Institute with the Universit├Ąt Hamburg, the University of Antwerp and the International Legal Institute as partners. Previously, the IJI collaborated with the Asser Institute (Project Leader), Utrecht University, Ghent University and the University of Valencia on a study on the application of the Brussels Ibis Regulation: Cross-Border Proceedings in Family Law Matters before National Courts and the CJEU.

David Althoff is our specialist in the field of recognition and enforcement of foreign judgments. He is currently working on a PhD on the foundations of Dutch common law in the field of recognition and enforcement of foreign judgments in the area of property & commercial law. For questions about PIL procedural law, please feel free to contact him by telephone via the Helpdesk: 003170 3109 173.