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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.
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