Articles

Dutch Supreme Court: Dutch courts may refuse to recognize foreign judgments and the enforceability thereof due to the absence of formal enforceability

Dutch Supreme Court: Dutch courts may refuse to recognize foreign judgments and the enforceability thereof due to the absence of formal enforceability

Dutch Supreme Court: Dutch courts may refuse to recognize foreign judgments and the enforceability thereof due to the absence of formal enforceability

30.04.2015 NL law

 

In a judgment dated 26 September 2014, the Dutch Supreme Court held that in addition to the already existing requirements for recognition of a foreign civil judgment, in the absence of a treaty between the Netherlands and a foreign jurisdiction with respect to the mutual recognition and enforcement of civil judgments, Dutch courts should also take into account whether the foreign judgment is 'formally' enforceable in the jurisdiction from which it originated.

Dutch Supreme Court 26 September 2014 (ECLI:NL:HR:2014:2838)

According to Dutch private international law, a judgment from a court in a foreign jurisdiction is not enforceable in the Netherlands unless such enforceability is allowed under Dutch law or a treaty exists between the Netherlands and the relevant jurisdiction permitting enforcement of civil judgments from that jurisdiction. If no such law or treaty applies, a foreign judgment will not be enforceable in the Netherlands without re-litigation before a Dutch court.

However, until recently, Dutch courts could be expected to enforce a judgment from a court in a foreign jurisdiction (without full re-litigation on the merits of the case), provided that such judgment (i) was a final judgment following valid submissions and was rendered by a court which had established its jurisdiction; (ii) was not rendered in violation of elementary principles of fair trial; and (iii) was not contrary to the public policy of the Netherlands. In its ruling the Dutch Supreme Court added as a fourth requirement that the foreign judgment is not incompatible with either a prior judgment rendered by a Dutch court in a dispute between the same parties, or a prior judgment rendered by a foreign court in a dispute between the same parties, concerning the same subject matter and based on the same cause of action, provided that such prior judgment was also capable of being recognised in the Netherlands. Although not confirmed by the Dutch Supreme Court it seems that this fourth requirement is derived directly from the Brussels I regulation on the recognition and enforcement of judgments in civil and commercial cases.

More importantly, the ruling of the Dutch Supreme Court provides for another requirement for recognition by the Dutch courts, i.e. that the foreign judgment is 'formally' enforceable in the jurisdiction from which it originated. The Dutch Supreme Court, in line with the rules set out in the European Court of Justice case Coursier/Fortis Bank (ECJ, C-267/97), ruled that a foreign judgment is not 'formally' enforceable if the judgment, for instance:

(a) has been suspended as a result of an appeal having been filed in the relevant foreign jurisdiction;

(b) has been annulled by a higher court in the relevant foreign jurisdiction; or

(c) provides a finite term during which it must be enforced and such term has not yet commenced or has already expired.

Maturity of claim, absence of authority to request enforcement or repayment and set-off, however, are not considered restrictions on 'formal' enforceability.

Clients should be aware that a favourable judgment obtained in a jurisdiction which does not have a treaty for the mutual recognition and enforcement of civil judgments with the Netherlands, such as, in the case at hand, the Russian Federation, is likely to be subject to full re-litigation in the Netherlands if one or more of the requirements set out above are not met.

Related news

13.11.2019 NL law
A new Act on the Supervision of Trust Offices

Articles - Roderik Vrolijk and Soeradj Ramsanjhal published an article in the Dutch Financial Law Review as a follow-up on their article two years ago in the same journal. The authors specifically shed light on the customer due diligence and open norms of the new Act on the Supervision of Trust Offices 2018, that entered into force on 1 January 2019. 

Read more

31.10.2019 NL law
EBA Publishes Follow-Up Report on 2018 FinTech Roadmap

Short Reads - Building on its 2018 FinTech Roadmap, the EBA has issued a report focused on potential impediments to the cross-border provision of banking and payment services. In the 29 October 2019 report, the EBA identifies three regulatory areas in which the further integration of European banking and payment services markets can be improved.  The three areas the EBA addresses are authorisation and licensing, conduct of business and consumer protection requirements, and anti-money laundering ("AML") and countering the financing of terrorism ("CFT").

Read more

08.11.2019 BE law
Interview with Wouter Ghijsels on Next Gen lawyers

Articles - Stibbe’s managing partner Wouter Ghijsels shares his insights on the next generation of lawyers and the future of the legal profession at the occasion of the Leaders Meeting Paris where Belgian business leaders, politicians and inspiring people from the cultural and academic world will discuss this year's central theme "The Next Gen".

Read more

07.11.2019 NL law
Banking & Finance 2019 Second Edition – The Netherlands and Luxembourg chapter

Articles - Maarten de Bruin, Rein van Helden, Rogier Raas and Robert Steeg have all contributed to the Chambers and Partners Banking & Finance 2019 Second Edition, providing the Netherlands chapter. The Luxembourg chapter was written by Gérald Origer, Jean-Marc Delcour, Steven Paridaens and Nicolas Pradel.

Read more

17.10.2019 NL law
Objective indicator high-risk third countries repealed as of 18 October 2019

Short Reads - The Implementation Decree for the Wwft 2018 has been amended. As a result, as of 18 October 2019 institutions subject to the Dutch Anti-Money Laundering and Anti-Terrorism Financing Act will no longer have to report transactions solely on the basis that this transaction relates to an individual residing, or a legal entity having its registered office in, a high-risk third country.

Read more

Our website uses functional cookies for the functioning of the website and analytic cookies that enable us to generate aggregated visitor data. We also use other cookies, such as third party tracking cookies - please indicate whether you agree to the use of these other cookies:

Privacy – en cookieverklaring