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NetherlaNds Buren van Velzen Guelen NV application. Judgments for these purposes means any order of a court in a member state, including injunctions, interlocutory orders, decrees for specific performance and orders for costs, but it excludes certain matters such as those relating to arbitration, bankruptcy and winding-up of corporations and revenue, customs and administrative matters. The other member states to which this Regulation applies are Austria, Belgium, Bulgaria, Czech Republic, Denmark (with effect from 1 July 2007), Estonia, Finland, France, Germany, Greece, Greek Cyprus, Hungary, Italy, Latvia, Lithuania, Luxembourg, Malta, Poland, Portugal, Republic of Ireland, Romania, Slovakia, Slovenia, Spain, Sweden and UK. Two important treaties pre-date the Brussels I Regulation: the Brussels Convention on Jurisdiction and Judgments in Civil and Commercial Matters, 1968 (the Brussels Convention) and the Lugano Convention on Jurisdiction and the Enforcements of Judgments in Civil and Commercial matters (1988) (the Lugano Convention). The Brussels Convention remains relevant mainly in relation to pre-2007 judgments from Denmark. The Lugano Convention applies in relation to Iceland, Norway and Switzerland. A new Lugano Convention that is more aligned with the Judgments Regulation was signed in 2007, and when fully implemented will apply to these three countries. European fast-track procedures Foreign judgments that have been obtained in uncontested proceedings in other EU member states (except from Denmark) can be enforced under Regulation (EC) No. 805/2004 of the European Parliament and of the European Council of 21 April 2004 – European Enforcement Order for uncontested claims. A European Enforcement Order (EEO), once obtained in the foreign court, is automatically enforceable in the Netherlands without an exequatur or other proceedings in the Netherlands being required, and with very little opportunity for the judgment to be challenged. The European Small Claims Procedure (ESCP) established by Regulation (EC) No. 861/2007 also applies in the Netherlands. This Regulation provides an alternative for cross-border claims up to Ä2,000 in value involving civil and commercial matters (excluding certain matters such as arbitration, employment law and bankruptcy). Where cross-border enforcement is sought, it eliminates intermediate proceedings necessary to enable recognition and enforcement as between the Netherlands and other EU member states (except Denmark). A newer alternative European system now exists as well for cross-border claims – the European Order for Payment Procedure (EOP), governed by Regulation (EC) No. 1896/2006. This simplified process employs standard forms and procedures across EU member states (excluding Denmark) for the recovery of uncontested monetary debts in many types of civil and commercial matters that are not the subject of any existing judgment. On receipt of an application for an EOP the Dutch court issues the order, which also informs the defendant that the information in the application has not been verified by the court, that the order becomes enforceable unless a statement of objection is lodged, and that the time limit for such objections is 30 days from the date of service. If objections are lodged, the matter then proceeds as a contested claim under the ordinary civil procedure. Arbitration awards Foreign arbitral awards to which a treaty for the recognition and enforcement applies may be enforced in the Netherlands after obtaining an exequatur. The Netherlands is party to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, New York, 1958. Article 1076 of the Dutch Act on Civil Proceedings under certain conditions allows for the enforcement in the Netherlands of a foreign arbitral award in the absence of a treaty providing for the recognition and enforcement of the foreign arbitral award or if a treaty allows a party to invoke the laws of the country where recognition or enforcement is sought. Arbitral awards will in principle not be recognised and enforceable under article 1076 of the Dutch Act on Civil Proceedings if: • the judgment debtor, asserts and proves that: • a valid arbitration agreement under the law applicable thereto is lacking; • the arbitral tribunal is constituted in violation of the rules applicable thereto; • the arbitral tribunal has not complied with its mandate; • the arbitral award is still open to an appeal to a second arbitral tribunal or to a court in the country in which the award is made; or • the arbitral award has been set aside by a competent authority of the country in which that award is made; or • the court finds that the recognition or enforcement would be contrary to Dutch public policy. 2 Intra-state variations Is there uniformity in the law on the enforcement of foreign judgments among different jurisdictions within the country? The Netherlands is a unitary state with only one jurisdiction. 3 Sources of law What are the sources of law regarding the enforcement of foreign judgments? The primary sources of law regarding enforcement of foreign judgments are article 431 and articles 985-994 of the Dutch Act on Civil Proceedings for foreign judicial judgments and articles 1075 and 1076 of the Dutch Act on Civil Proceedings for foreign arbitral awards. The rules regarding the enforcement of foreign judgments and foreign arbitral awards have been further refined in case law. A landmark case decided by the Dutch Supreme Court was its judgment of 14 November 1924, NJ 1925, 91, W 11 301 (Bontmantel), providing that in the event of a re-trial of a foreign judgment the court in each specific case will have to determine to what extent the foreign judgment may be recognised. 4 Hague Convention requirements To the extent the enforcing country is a signatory of the Hague Convention on Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters, will the court require strict compliance with its provisions before recognising a foreign judgment? The Netherlands ratified the Hague Convention on Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters on 21 June 1979. The Convention entered into force for the Netherlands on 20 August 1979. The Convention currently has only five contracting states, of which the Netherlands, Cyprus and Portugal are member states of the European Union. In relations between these countries, the Brussels I Regulation prevails over the Convention. Since the two other contracting states are Albania and Kuwait, the Convention has little practical significance and little is known about its actual application by the Dutch courts. 5 Limitation periods What is the limitation period for enforcement of a foreign judgment? When does it commence to run? In what circumstances would the enforcing court consider the statute of limitations of the foreign jurisdiction? Article 3:324 of the Dutch Civil Code provides that the right to enforce a judicial or arbitral judgment becomes prescribed on the expiry of 20 years as of the day following the day of the judgment or, if for its enforcement certain conditions have to be fulfilled that are not dependent on the will of the judgment creditor, as of the day following the day on which these conditions are fulfilled. 84 Getting the Deal Through – Enforcement of Foreign Judgments 2013
Buren van Velzen Guelen NV NetherlaNds The prescription period is five years with regard to what, pursuant to the judicial or arbitral judgment, has to be performed within one year or a shorter period. Article 3:324 of the Dutch Civil Code law applies to foreign judgments, unless an applicable treaty provides for an alternative limitation period. For judgments to be enforced under the Brussels Convention, the Lugano Convention, the Judgments Regulation or the EEO and ESCP procedures, the European Court of Justice has ultimate jurisdiction. 6 Types of enforceable order Which remedies ordered by a foreign court are enforceable in your jurisdiction? In principle all remedies ordered by a foreign court are enforceable under Dutch law, except that specific performance may not be enforceable under all circumstances; for example, an obligee of a contractual relationship with a personal character may defend against a claim for specific performance by stating that, due to a change of circumstances, compulsory specific performance deeply infringes on his or her personal life. 7 Competent courts Must cases seeking enforcement of foreign judgments be brought in a particular court? According to article 985 of the Dutch Act on Civil Proceedings, as a general rule an exequatur for the enforcement of a foreign judgment or arbitral award must be applied for to the district court of the place of domicile of the defendant, or alternatively the place where enforcement is sought. In the event of the enforcement of foreign judgments under the Brussels I Regulation, an exequatur must be applied for to the presiding judge of the district court of the place of domicile of the party against whom enforcement is sought, or alternatively the place of enforcement. Foreign arbitral awards to which a treaty for the recognition and enforcement applies or that are recognised and enforceable under article 1076 of the Dutch Act on Civil Proceedings, may be enforced in the Netherlands after obtaining an exequatur from the presiding judge of the district court of the place of domicile of the defendant, or alternatively the place of enforcement. 8 Separation of recognition and enforcement To what extent is the process for obtaining judicial recognition of a foreign judgment separate from the process for enforcement? Article 985 of the Dutch Act on Civil Proceedings provides that the Dutch courts must recognise foreign judgments enforceable in the Netherlands further to a treaty or a statutory provision. In the absence of a treaty or a statutory provision, the case decided in the foreign judgment will be subject to re-trial by the Dutch courts. In the event of a re-trial the court will in each specific case have to determine to what extent the foreign judgment may be recognised. The main rule is that in a re-trial the case will fully be re-considered on the merits of the case. However, the court will in principle only do a summary review of the foreign judgment in the event that: • the foreign judgment has been rendered by a foreign court applying similar procedural safeguards as applied by Dutch courts (eg, the parties were properly served with notice of the proceedings and given a reasonable opportunity to be heard); • the parties have voluntarily submitted to the jurisdiction of the foreign court by means of an explicit contractual forum choice or implicitly (eg, by voluntarily appearing before the foreign court); and • the enforcement of the foreign judgment is not contrary to Dutch public policy. 9 Defences Can a defendant raise merits-based defences to liability or to the scope of the award entered in the foreign jurisdiction, or is the defendant limited to more narrow grounds for challenging a foreign judgment? In the event of foreign judgments enforceable in the Netherlands further to a treaty or a statutory provision, the defendant cannot obtain a review of the case, leaving apart the fact that a treaty or statutory provision may allow the Dutch court to review the judgment on compliance with procedural regularities or on violation of Dutch public policy; for example, according to article 34 of the Brussels I Regulation, recognition of a foreign judgment will be refused: • if such recognition is manifestly contrary to public policy in the member state in which recognition is sought; • where it was given in default of appearance, if the defendant was not served with the document that instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him or her to arrange for his or her defence, unless the defendant failed to commence proceedings to challenge the judgment when it was possible for him or her to do so; • if it is irreconcilable with a judgment given in a dispute between the same parties in the member state in which recognition is sought; or • if it 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 member state addressed. In the absence of a treaty or a statutory provision providing for recognition and enforcement, the case decided in the foreign judgment will be subject to re-trial by the Dutch courts. In such a re-trial, the defendant can raise merits-based defences to liability or to the scope of the award entered in the foreign jurisdiction. 10 Injunctive relief May a party obtain injunctive relief to prevent foreign judgment enforcement proceedings in your jurisdiction? Two situations may be distinguished, namely: an applicable treaty or specific statutory provision provides for the possibility of injunctive relief; or in the event no applicable treaty or specific statutory provision provides for injunctive relief, injunctive relief may be sought under the rules of article 438 of the Dutch Act on Civil Proceedings. Article 43 of the Brussels I Regulation provides that the decision on the application for a declaration of enforceability may be appealed against by either party. The defendant has to lodge an appeal with the district court and the applicant has to lodge appeal with the appellate court. Article 44 of the Brussels I Convention provides that the judgment given on the appeal may be contested only by appeal in cassation to the Dutch Supreme Court. Article 45 of the Brussels I Regulation provides that the court shall refuse or revoke a declaration of enforceability only on one of the grounds specified in articles 34 and 35 of the Brussels I Regulation. Under no circumstances may the foreign judgment be reviewed as to its substance. According to article 46 of the Brussels I Regulation, the court with which an appeal is lodged under article 43 or article 44 may, on the application of the party against whom enforcement is sought, stay the proceedings if an ordinary appeal has been lodged against the judgment in the member state of origin or if the time for such an appeal has not yet expired; in the latter case, the court may specify the time within which such an appeal is to be lodged. The court may also make enforcement conditional on the provision of such security as it shall determine. www.gettingthedealthrough.com 85
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