NETHERLANDS Law and Practice Contributed by: Yvette Borrius, Christine Vreede, Tiffany Zandbergen and Daphne Beunk, Florent B.V.
Section 431 (2) of the DCCP provides that, without a law or convention determining otherwise, new pro- ceedings have to be initiated before a Dutch court to obtain a judgment that is eligible for enforcement in the Netherlands. In practice, however, most cases are not reviewed on the merits again. If the foreign deci- sion meets certain recognition conditions developed in Dutch case law, and the decision is still enforceable in the country of origin, the Dutch court will award a claim corresponding with the foreign decision. If there is a law or convention pursuant to which the foreign decision qualifies for enforcement in the Netherlands, permission of the court to enforce the decision in the Netherlands must be obtained. This permission, or warrant to enforce, is known as an “exequatur” (Sections 985–994, DCCP). Upon the exequatur application, the Dutch court verifies whether all formalities – including but not limited to the review criteria of the applicable convention regulations – have been observed. The exequatur proceedings of Sections 985–994 of the DCCP may be overruled by special convention or statutory regulations. The Netherlands is – amongst others – party (as mem- ber of the European Union) to the Lugano Convention, the Convention on choice of court agreements (the Hague, 2005), the Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Com- mercial Matters (The Hague, 2019). Recognition and Enforcement of Judgments from EU Member States (Except Denmark) In civil and commercial matters, the recognition and enforcement of judgments from EU member states (except Denmark) is provided for by the recast of the Brussels I Regulation and some other EU regulations. The Brussels I Recast provides for enforcement of judgments rendered in another EU member state – which is enforceable in that state – without any spe- cial procedure being required. The relevant party may apply to the enforcing authority in the country of enforcement directly (in the Netherlands this is a bailiff). To initiate enforcement in the Netherlands, the relevant party must submit to the bailiff: (i) a copy of the judgment which satisfies the conditions neces- sary to establish its authenticity (Section 53 (a) Brus-
sels I Recast); and a standard certificate issued by the court of origin pursuant to Section 53 (b) and Annex I of Brussels I Recast, confirming that the judgment is enforceable in that member state. If necessary, a certified translation of these documents into Dutch may be required. The party against whom enforcement is requested may oppose enforcement in the Netherlands by invok- ing the grounds for refusal under Section 45 (1) of Brussels I Recast, as well as the grounds that can be advanced under Dutch law for refusal or suspension of the execution (provided that these grounds are not incompatible with the grounds of Brussels I Recast). A decision upon such application is subject to appeal and appeal in cassation. It is possible to lodge an appeal against almost all final judgments of a district court at the courts of appeal. Objections against interim judgments that do not contain final decisions must be included in the appeal against the final judgment, unless the court grants permission to lodge an interim appeal. Most decisions of the courts of appeal can be appealed to the Supreme Court. Decisions of the Enterprise Court can only be appealed to the Supreme Court. 10.2 Rules Concerning Appeals of Judgments The court of appeal may reconsider the case in full (eg, on the law and on the facts). The court of appeal is not bound by the facts established by the court of first instance (district court). On the basis of the acknowledged facts and of ascertained new facts, it will decide if the judgment of the court of first instance should be upheld. If the court of first instance misin- terpreted the rules of law and/or the facts, the court of appeal may reverse the decision and provide judg- ment itself, covering all elements of the dispute. 10. Appeal 10.1 Levels of Appeal or Review to a Litigation The grounds for appeal in cassation are limited to questions regarding the application of the law and legal reasoning behind the appealed judgment. The Supreme Court does not (re)examine the facts.
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