Recognition and Enforcement of Foreign Judgments and Sources of Law
In order to discover under which conditions foreign judgments may be recognised and enforced in the Netherlands, there are several sources of law that must be taken into account at different priorities. There are sources of law at EU (or supranational) level, sources of law of the Hague Conference on Private International Law, multilateral treaties, bilateral treaties and sources of national law..
At EU level, there are a number of important instruments on the recognition and enforcement of judgments:
- International civil and commercial matters: Brussels Ibis Regulation (EEX Regulation);
- International divorce and parental responsibility: Brussels IIa Regulation;
- International child support and spousal support: Maintenance Regulation;
- International matrimonial property law: Matrimonial Property Regulation;
- International partnership property law: Partnership Regulation;
- International succession law: Succession Regulation.
In international civil and commercial matters relating to Iceland, Switzerland and Norway, the Lugano Convention (EVEX II) should be considered. This Convention is parallel to the old Brussels I Regulation.
The Hague Conference has developed the Hague Choice of Court Convention of 2005 especially for exclusive choice of court cases. This Convention is only relevant in relation to Mexico, Montenegro, Singapore and the United Kingdom. In addition, in the future, the Judgments Convention 2019 may apply to the Netherlands in civil and commercial matters relating to third countries.
On a number of specific subjects, a number of bilateral execution treaties apply to the Netherlands.
If the above sources of law do not apply to your case, within the Netherlands you will have to fall back on our national rules on international jurisdiction: Article 431 of the Dutch Civil Procedural Code, and in respect of more specific subjects, Book 10 of the Dutch Civil Code.
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Recognition and implementation and general principles and teachings
The general principle for the recognition and enforcement of foreign judgments within the EU is the free movement of judgments. This means that judicial decisions between Member States can be freely recognized and enforced, without requiring an exequatur. This principle has since been implemented in many jurisdictions; think of the international agreement, international tort, international divorce, international alimony, international inheritance law, international legal entities, international rights in rem, et cetera.
Article 431 DCCP and the associated important Dutch case law apply to situations that do not fall under EU legislation or treaties and which are therefore not covered by the free movement of judgments. Article 431 paragraph 1 DCCP prohibits the enforcement of foreign judicial decisions and authentic instruments drawn up abroad, subject to the provisions of Articles 985-994 DCCP. Articles 985 et seq. contain a general exequatur procedure in case a decision is enforceable under treaty or law. This enforcement procedure is deviated from if an enforcement treaty has its own enforcement procedure
Article 431 paragraph 2 DCCP provides that the cases can be heard and settled again in the Dutch court.
On the basis of Article 431 paragraph 1 DCCP and the prohibition on enforcement contained therein and the possibility to litigate again before the Dutch court on the basis of Article 431 paragraph 2 DCCP, there has been a development in case law. Recognition of foreign property law judgments is possible on the basis of unwritten common international private law. There are a number of conditions attached to this. The Supreme Court described these recognition conditions in the Gazprombank judgment:
In a lawsuit under art. 431 paragraph 2 DCCP, when answering the question whether a foreign decision is eligible for recognition, the starting point is that a foreign decision is in principle recognized in the Netherlands if (i) the jurisdiction of the court that issued the decision rests on a ground of jurisdiction that is generally acceptable by international standards, (ii) the foreign decision has been reached in a judicial procedure that meets the requirements of due process of law and is provided with sufficient safeguards, (iii) the recognition of the foreign decision does not conflict with Dutch public policy, and (iv) the foreign decision is not incompatible with a decision of a Dutch court given between the same parties, or with a previous decision of a foreign court given between the same parties in a dispute on the same subject concerned and is based on the same cause, provided that that earlier decision is recognized ning in the Netherlands is susceptible.”
If these conditions are met and the claim on the basis of Article 431 paragraph 2 DCCP is aimed at condemning that for which the other party has been sentenced in the foreign decision, then the court must take the parties’ commitment to that decision as the starting point, and the claim is in principle admissible.
Recognition of foreign decisions is therefore possible under certain conditions according to unwritten Dutch common international private law. If the claim is for a conviction in accordance with the foreign judgment, then the claim can in principle be allowed, provided the recognition conditions are met. In principle, because the foreign decision must be formally enforceable.
The claim is awarded in the form of the Dutch judgment. After all, the Article 431 paragraph 2 DCCP procedure culminates in a decision by the Dutch court.
Lawyer Tim de Greve, partner at Stibbe.
I regularly engage the IJI in cases where PIL aspects play a role. The institute has existed for over 100 years and can therefore boast a long history and experience. There are prominent people associated with it. Not least Mr Strikwerda. They support you from the outset, immediately understand the question you are faced with and suggest possible solutions. They have the right connections at home and abroad to answer questions within a reasonable timeframe. Apart from that, it is very pleasant to work with the people of the IJI.
Lawyer Channa Samkalden, Prakken d'Oliveira
We have received advice from the IJI on several cases. One example is a case brought by a number of Nigerian farmers against Shell concerning oil pollution in Nigeria. That case is about the application of Nigerian law by the Dutch court. The IJI looked into the framework of tort law in Nigeria for us. We used that advice in the proceedings and also submitted it to the court and it showed, for instance, that our plaintiffs were also entitled to claim against Shell under Nigerian law. The IJI is extremely useful in all such cases because you receive very sound advice on the basis of which you know whether you should have a number of things investigated further. It’s very useful advice at an early stage of your procedure.
Attorney Ria van Seventer, Meesters aan de Maas Advocaten
Our law firm is based in Rotterdam, a city of more than 170 nationalities, so we regularly have to ask the IJI for advice. For example, I had to deal with the recognition of a child by an Italian man, to which Italian law had to be applied. I don’t speak Italian so I could not do that myself. Nor did I have access to the sources which the IJI has.