Recognition and Enforcement of Foreign Titles in the Holanda

The Trade Register of the Dutch Chamber of Commerce

At all times the Trade Register at the Dutch Chamber of Commerce can be consulted. In the Trade Register the Dutch Chamber of Commerce records the details of all companies and other legal entities in the Netherlands: the trade name, the business address, who is authorized to represent the company and if there is a sole shareholder. Also the name and residence address of the director(s) of companies or other legal entities.

Of every private limited company with one shareholder, the name and – if a company - residence address details of this shareholder can be found in the Trade Register of the Chamber of Commerce. In case the private limited company has multiple shareholders, the details of these shareholders are not registered.

The Trade Register also demonstrates the details of (legal) persons affiliated with the legal entity.

Furthermore, the Trade Register also holds the filed annual accounts, deed of incorporation and articles of association of every legal entity and its affiliated legal entities.

The Trade Register can be searched by name or address details of companies and other legal entities, but not by names of natural persons.

Land Register

The Land Register can be searched for registered property, such as real estate and boats. The Rand Registry also records whether there are any encumbrances, such as mortgages and/or other limited rights on the registered property and the amount for which these limited rights have been established. The most purchase price of registered property is also registered in the Land Register. The Land Register does not record the balance of any loan secured. Based on the data in the Land Register, it cannot be determined whether there is an excess value. The Land Register can be searched by name and address details of natural persons.

The Netherlands Vehicle Authority

In case the judgment debtor is a natural person, then information about any periodic income can be obtained through an attachment. After the attachment, the judgment debtor is obliged to make a statement of his income and assets (article 720 DCCP in conjunction with article 475g DCCP). At the expense of the judgment debtor, the bailiff is also entitled to ask anyone he suspects of making or owing periodic payments to the debtor whether this is the case. Anyone is obliged to answer this in writing if so requested (article 720 in conjunction with article 475g, subsection 2 DCCP).

In case it is suspected that a judgment debtor has vehicles at its disposal and the creditor disposes of one or more license plate numbers, it is possible to find out from the Vehicle Authority who owns the vehicles with the relevant license plate number.

Seizure

The Dutch Code of Civil Procedure (‘DCCP’) makes it possible to execute judgements and provides for rules to execute prejudgment attachments in this light. In both cases, the judgment creditor has the opportunity to obtain information about the judgement debtor. In order to make a prejudgment attachment, permission must be requested from the preliminary relief judge of the competent court.

If a bailiff is authorized to make a seizure, the judgment debtor is obliged to inform the bailiff, upon request, which bank has funds belonging to him in its possession (article 475aa sub a DCCP). The bailiff is also authorised to ask a bank, prior to levying a seizure, whether it has funds of the judgment debtor in its possession. The bank should answer this question directly and only inform the execution debtor about this once an seizure has been made (article 475aa sub b DCCP).

In case of a seizure of funds in a bank account, banks are obliged to issue a statement after the lapse of two weeks since the date of the seizure. If the judgment debtor holds accounts with that bank, the bank's statement is to include, inter alia, the bank balances and a statement of any security interests (article 720 in conjunction with article 476a DCCP). 

If the creditor has indications that the judgment debtor has a claim against a third party, the creditor may levy a (garnishment) attachment on that claim. In that case, the third party will be obliged to declare what it owes to the judgment debtor. Again, as soon as two weeks have lapsed since the attachment, the third party must declare what it owes to the execution debtor (article 720 in conjunction with section 476a DCCP).

Foreign judgments cannot be enforced within the Netherlands (article 431, paragraph, 1 DCCP), unless a foreign judgment is enforceable in the Netherlands under a convention or by law. In that case, court permission must be obtained to enforce a foreign judgment (article 985 DCCP).

An exception applies to judgments from an EU member state. Under the Brussels I-bis regulation, a judgment rendered in one member state is automatically recognized in any other EU member states and can therefore be enforced there. No separate proceedings are required for this.

Under the Brussels I-bis Regulation, a judgment rendered in an EU member state is automatically recognised in other EU member states and can therefore be enforced there. No separate proceedings are required for this.

In order to enforce in the Netherlands a judgment rendered in another EU member state, a so-called certificate concerning a judgment in civil and commercial matters must be provided to the bailiff, among other things. The original court that rendered the judgment issues the certificate at the request of an interested party (article 53 Brussels I-bis Regulation).

What the conditions and procedure are for the recognition of a non-EU judgment depends on whether a convention applies, or not. 

Lugano Convention 

The Lugano Convention governs jurisdiction and the enforcement of judgments in civil and commercial matters. Besides EU member states, Iceland, Norway and Switzerland are also parties to the Lugano Convention. The provisions of the Lugano Convention are largely similar to the provisions of the Brussels I bis regulation. A judgment rendered in a state that is a party to the convention is automatically recognised by the other party states (the convention does list a number of exhaustive grounds for refusal). Unlike the case under the Brussels I-bis Regulation, the judgment must, on application by a party, be declared provisionally enforceable by the competent court in the country where the enforcement measures are to be carried out.

In the Netherlands, the application to declare the foreign judgment provisionally enforceable is to be submitted by an attorney or a bailiff filing an application with the preliminary relief judge of the competent court. The application is to be accompanied by a certificate concerning judgments and court settlements as referred to in articles 54 and 58 of the convention. The original court that rendered the judgment issues this certificate at the request of any interested party (article 54). At this stage of the proceedings, the party against whom enforcement is sought will not be heard (ex parte).

The Hague choice of court convention (2005)

This convention entered into force on 1 October 2015 for all EU countries and Mexico. This convention also entered into force for Denmark (1 September 2018), Moldavia (1 July 2023), Montenegro (1 August 2018, Ukraine (1 August 2023) and Singapore (1 October 2016). The convention entered into force in the UK on 1 January 2021.

Under this convention, a court judgment from one member state may be recognised and enforced in another member state by the competent court in the latter state. 

There is a certain number of requirements to be fulfilled under on this convention. The parties must have agreed on an exclusive choice of forum. The dispute must be a civil or commercial matter. Furthermore, it must be an international matter. This convention cannot be invoked purely domestic cases. A case is international where recognition and enforcement is sought in another member state (article 1).

Interim (temporary) measures of protection (e.g. a freezing order) are not governed by the convention. This convention neither requires nor precludes the grant, refusal or termination of interim measures of protection by a court of a member state and does not affect whether or not a party may request or a court should grant, refuse or terminate such measures (article 7).

A judgment rendered by a court of a member state designated by an exclusive choice of forum agreement shall be recognised and enforced in another member state (article 8, paragraph 1). Recognition and enforcement may be refused only on the grounds specified in the convention (paragraph 1). In no case there shall be a review of the merits of the judgement rendered by the court of origin. The court addressed is bound by the findings of fact on which the court of origin based its jurisdiction, unless the judgment was given by default (paragraph 2). A judgment shall be recognised only if it has effect in the state of origin and shall be enforced only if it is enforceable there (paragraph 3).

The convention includes seven grounds for refusal of recognition or enforcement (article 9). A special provision is article 11. Article 11 regulates ‘exemplary or punitive damages’. Recognition and enforcement may be refused if, and to the extent that, the judgment awards damages, including exemplary or punitive damages, that do not compensate a party for actual loss or harm suffered. In doing so, the court addressed shall take into account whether and to what extent the damages awarded by the court of origin serve to cover costs and expenses relating to the proceedings.

The foreign judgment cannot be enforced in the Netherlands until a Dutch court has granted permission (article 985 Rv). The courts of the district in which the other party of the applicant is domiciled and that of the district in which enforcement is sought have jurisdiction to decide on the application. The application must be submitted by an attorney (article 986 paragraph 1 DCCP). The parties against whom enforcement is sought must be heard, or at least properly summoned to be heard (article 987 paragraph 2 DCCP). The party being heard is obliged to have its interests represented by an attorney (article 987 paragraph 5 DCCP). 

The Hague Judgments Convention (2019)

This convention concerns the recognition and enforcement of foreign judgments in civil or commercial matters. It entered into force on 1 September 2023 for the EU, excluding Denmark, and Ukraine. It entered into force on 1 October 2024 for Urugay. The convention has been signed by the United States, Costa Rica, Israel and Russia, but these countries have not yet acceded to and ratified the convention.

The principle of the convention is the reciprocal recognition and enforcement of judgments between state parties. No review will take place in the state where recognition is sought. The court to which recognition is sought may not refuse because a factually or legally incorrect decision has been rendered elsewhere. Refusal of recognition and enforcement may only take place on the grounds for refusal listed exhaustively in the convention.

The foreign judgment cannot be enforced in the Netherlands until permission has been granted by the relevant Dutch court (article 985 DCCP). The courts of the jurisdiction in which the counterparty of the applicant is domiciled and that of the jurisdiction in which enforcement is sought are competent to decide on the application. The application must be submitted by an attorney (article 986 paragraph 1 DCCP). The parties against whom enforcement is sought must be heard, or at least properly summoned to be heard (article 987 paragraph 2 DCCP). The party being heard is obliged to have its interests represented by an attorney (article 987 paragraph 5 DCCP). 

Further matters

In case the aforementioned regulation or conventions do not apply, article 431 DCCP may offer a solution for the recognition and enforcement of foreign judgments in the Netherlands. Article 431 DCCP provides the possibility to enforce ‘judgments rendered by foreign courts’ in the Netherlands under certain conditions. The Dutch court will then judge in separate proceedings whether and to what extent it will grant authority to a decision rendered by the foreign court.

The Supreme Court ruled in a judgment of 26 September 2014 (ECLI:NL:HR:2014:2838) that a foreign judgment is to be recognised and enforceable in the Netherlands if:

1. The foreign judgment was rendered by a competent court;
2. In court proceedings with sufficient guarantees;
3. And the recognition of the foreign judgment is not contrary to Dutch public policy; and
4. The foreign decision is not incompatible with a judgment rendered by a Dutch court on the same dispute and between the same parties.
   

If these conditions are met, the Dutch court does not have to judge the matter on its merits all over again. Therefore, if these conditions are not met, the matter needs to be reviewed again on the merits by the Dutch court.

Lugano convention 

There is no rule specifying the time limit within which a decision must be rendered on the application to declare the foreign judgment provisionally enforceable. Granting of the application by the preliminary relief judge takes the form of a simple permission (article 3, paragraph 1, of the EU Enforcement Regulation and Lugano Convention Implementation Act) and will usually be granted within a few weeks.

Further conventions 

In other matters, proceedings on the merits should be conducted, including adversarial proceedings. Usually, the procedure will take several months or longer.

In addition to attorney fees, court fees must be paid. The judgment debtor will be ordered to pay the costs. The costs include the court fee paid by the creditor and a fixed amount set by the Dutch government for lawyer's fees. As said fees (incl attorney fees) may differ, the total costs will vary.

On the application of any interested party or on the application of the person against whom enforcement is sought, the recognition or the enforcement of a judgement shall be refused (articles 45 and 47 The Brussels I-bis Regulation):

• If such recognition or enforcement is manifestly contrary to public policy (ordre public) in the Member State addressed;
  
• Where the judgment was given in default of appearance, if the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant failed to commence proceedings to challenge the judgment when it was possible for him to do so;
• If the judgment is irreconcilable with a judgment given between the same parties in the Member State addressed;
• If the judgment 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; or
  

if the judgment conflicts with:

• Sections 3, 4 or 5 of Chapter II where the policyholder, the insured, a beneficiary of the insurance contract, the injured party, the consumer or the employee was the defendant; or
• Section 6 of Chapter II.

Lugano convention (article 34) 

A judgment shall not be recognised:

• If such recognition is manifestly contrary to public policy in the State in which recognition is sought;
• Where it was given in default of appearance, if the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant failed to commence proceedings to challenge the judgment when it was possible for him to do so;
• If it is irreconcilable with a judgment given in a dispute between the same parties in the State in which recognition is sought;
• If it is irreconcilable with an earlier judgment given in another State bound by this Convention 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 State addressed.

The Hague choice of court convention (article 9)

Recognition or enforcement may be refused if:

• The agreement was null and void under the law of the State of the chosen court, unless the chosen court has determined that the agreement is valid;
• A party lacked the capacity to conclude the agreement under the law of the requested State;
• The document which instituted the proceedings or an equivalent document, including the essential elements of the claim,
  • Was not notified to the defendant in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant entered an appearance and presented his case without contesting notification in the court of origin, provided that the law of the State of origin permitted notification to be contested; or
  • Was notified to the defendant in the requested State in a manner that is incompatible with fundamental principles of the requested State concerning service of documents;
• The judgment was obtained by fraud in connection with a matter of procedure;
• Recognition or enforcement would be manifestly incompatible with the public policy of the requested State, including situations where the specific proceedings leading to the judgment were incompatible with fundamental principles of procedural fairness of that State;
• The judgment is inconsistent with a judgment given in the requested State in a dispute between the same parties; or
• The judgment is inconsistent with an earlier judgment given in another State between the same parties on the same cause of action, provided that the earlier judgment fulfils the conditions necessary for its recognition in the requested State.

The Hague Judgments Convention (article 7):

Recognition or enforcement may be refused if:

• The document which instituted the proceedings or an equivalent document, including a statement of the essential elements of the claim:
  • Was not notified to the defendant in sufficient time and in such a way as to enable them to arrange for their defence, unless the defendant entered an appearance and presented their case without contesting notification in the court of origin, provided that the law of the State of origin permitted notification to be contested;
  • or 14.7.2022 EN Official Journal of the European Union L 187/7’ was notified to the defendant in the requested State in a manner that is incompatible with fundamental principles of the requested State concerning service of documents;
• The judgment was obtained by fraud;
• Recognition or enforcement would be manifestly incompatible with the public policy of the requested State, including situations where the specific proceedings leading to the judgment were incompatible with fundamental principles of procedural fairness of that State and situations involving infringements of security or sovereignty of that State;
• The proceedings in the court of origin were contrary to an agreement, or a designation in a trust instrument, under which the dispute in question was to be determined in a court of a State other than the State of origin;
• The judgment is inconsistent with a judgment given by a court of the requested State in a dispute between the same parties; or
• He judgment is inconsistent with an earlier judgment given by a court of another State between the same parties on the same subject matter, provided that the earlier judgment fulfils the conditions necessary for its recognition in the requested State.

Further matters

In case the aforementioned regulation or conventions do not apply, article 431 Rv may offer a solution for the recognition and enforcement of foreign judgments in the Netherlands. Article 431 Rv provides the possibility to enforce ‘judgments given by foreign courts’ in the Netherlands under certain conditions. The Dutch court will then judge in new proceedings whether and to what extent it will grant authority to a decision of the foreign court.

The Supreme Court ruled in a judgment of 26 September 2014 (ECLI:NL:HR:2014:2838) that a foreign judgment is recognised and enforceable in the Netherlands if:

1. The foreign judgment was made by a competent court;
2. In court proceedings with sufficient guarantees;
3. And the recognition of the foreign judgment is not contrary to Dutch public policy; and
4. The foreign decision is not incompatible with a judgment given by a Dutch court on the same dispute and between the same parties.
   

If these conditions are met, the Dutch court does not have to judge the matter on its merits all over again. The decision may be appealed within three months of service.

There is no statutory time limit for recognition of foreign judgments.

In addition to attorney fees, court fees must be paid. The judgment debtor is ordered to pay the costs. The costs include the court fee paid by the creditor and a fixed amount set by the Dutch government for lawyer's fees. The fixed amount is almost in every event not sufficient to cover the actual costs.

Once the foreign judgment is (declared) provisionally enforceable in the Netherlands, the same enforcement measures can be taken as on the base of a Dutch court judgment and other Dutch enforceable titles. With an enforceable title, assets of the judgment debtor can be seized and executed.

In the event that a party is declared bankruptcy after an enforcement order has been issued, the enforcement order issued passes into the general bankruptcy attachment. The creditor cannot continue the enforcement measures. The trustee takes over the enforcement measures, so to speak. The proceeds of an execution then fall into the bankruptcy estate and are distributed to the creditors pro rate parte and taking into account any preferential rights. 

In the event of bankrupt debtor, an individual creditor can no longer execute its judgement. The creditor must submit its claim with the trustee.

The New York Convention 

A foreign arbitral award may be recognised and enforced in the Netherlands, at the request of one of the parties, if a convention on recognition and enforcement applies (article 1075, paragraph 1, Rv). The most important convention in this context is the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 10 June 1958) (‘the New York Convention’).

Article V of the New York Convention is at the heart of the Convention. It states in the opening words of the first paragraph that recognition and enforcement are paramount: refusal thereof shall be exceptional.

Recognition and enforcement of the award may be refused only if:

• The award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made.
• The composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, or, failing such agreement, was not in accordance with the law of the country where the arbitration took place; or
• The award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, that part of the award which contains decisions on matters submitted to arbitration may be recognized and enforced; or
• The party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his case; or
• The parties to the agreement referred to in article II were, under the law applicable to them, under some incapacity, or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made; or

When no convention applies

If no recognition and enforcement convention applies, a foreign arbitral award may nevertheless be recognised in the Netherlands and enforcement thereof may be sought in the Netherlands unless (article 1076 Rv):

• The party against whom recognition or enforcement is sought asserts and proves that:
  • There is no valid agreement to arbitrate under the law applicable to that agreement;
  • The arbitral tribunal was constituted in violation of the rules applicable thereto;
  • The arbitral tribunal has not complied with its mandate;
  • The arbitral award is open to appeal before arbitrators or the court in the country where the arbitral award was made; and
  • The arbitral award has been set aside by a competent authority of the country where it was made;
• The court finds that recognition or enforcement is contrary to public policy.
  

The proceedings are initiated with a request for application. The application must be accompanied by an authentic copy of the decision (article 986, paragraph 2, Rv). In addition, documents must be submitted from which it can be deduced that the decision is enforceable in the country where the arbitral award was made. Thus, the arbitral award must be enforceable in the country where it was rendered and in the Netherlands. 

In the event the New York Convention applies, not only the arbitral award must be submitted, but also the original or a certified copy of the arbitration agreement. Unlike the Dutch regulation, the New York Convention does not require that the arbitral award is also enforceable in the country where it was rendered.