Under Dutch law, enforcement of foreign judgements is only possible where a convention between the Netherlands and the foreign country provides for it or if the judgement was rendered by a court in a Member State of the EU. There are many countries which have no convention with the Netherlands on the enforcement and recognition of judgements, e.g. Japan, United States and Russia.
The present article creates an overview of the legal procedure of the recognition and enforcement of a judgement rendered outside the EU in case where there is no governing convention.
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1. How can foreign courts' judgements be recognized and enforced in the Netherlands?
Judgments from non-EU countries (the 'third countries') can only be enforced in the Netherlands if there is a convention between the Netherlands and the foreign country concerned.Otherwise, the claimant must relitigate his case in the Netherlands in order to obtain a binding and enforceable judgement. However, if certain conditions are met, the claimant can initiate a simplified procedure ("disguised exequatur procedure") in order to seek a binding and enforceable Dutch judgement with the same content as the foreign decision, without litigating on the merits of the case. Although such procedure does not formally guarantee the recognition and enforcement of the foreign judgement, in practice it gives a binding effect to the third counties' decision in the Netherlands.
Otherwise, this disguised exequatur procedure is similar to any other civil procedure. It is initiated by the claimant's petition, it is composed of the parties' submissions and often a hearing and it results in a judgement which can be appealed at the second instance.
2. For what judgements can a disguised exequatur procedure be initiated?
Disguised exequatur procedures can be used for any enforceable foreign judgements, whether they are condemnatory, constitutive or declaratory.
3. When can a third country's judgement be recognized in the disguised exequatur procedure?
In the context of a disguised exequatur procedure, the interested party should submit the following: (i) an authentic copy of the judgement; (ii) legal opinion confirming enforceability of the judgement in the country of origin; and (iii) an official translation and legalization of the documents if it is required by the court.
Furthermore, the court will only follow the third country's judgement if the following substantive requirements are met:
- the foreign court’s jurisdiction is based on an internationally accepted ground;
- the principle of due process was not violated in the proceeding that resulted in the foreign judgement;
- the foreign judgement was rendered in judicial proceeding that met the requirements of and included safeguards for the proper administration of justice;
- the recognition of the foreign judgement would not contravene the Dutch public order;
- the foreign judgement is compatible with any judgement rendered by a court in a matter between the same parties or with any earlier judgement by a foreign court in a matter between those same parties in a dispute regarding the same issue and the same cause, subject to the provision that such earlier judgement is eligible for recognition in the Netherlands;
- the foreign judgement, by its terms, is already and still enforceable.
If the foreign judgment satisfies these formal and substantive conditions, the Dutch court will not review the foreign judgment on its merits and will render a judgment, which will incorporate the reasoning and the decisions of the foreign judgment. Otherwise the claim will have to be relitigated before the Dutch court which – in that case – will decide on the merits of the case irrespective of the findings of the foreign decision. However, even in the case of re-litigation, the Dutch court may nevertheless recognize some aspect of the foreign judgement as evidence of certain issues before the Dutch court.
This article is written to provide general information and does not constitute legal advice.