Netherlands. Philip WM ter Burg and Femke Faes. Buren van Velzen Guelen NV

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1 Philip WM ter Burg and Femke Faes 1 Treaties Is your country party to any bilateral or multilateral treaties for the reciprocal recognition and enforcement of foreign judgments? What is the country s approach to entering into these treaties and what, if any, amendments or reservations has your country made to such treaties? Dutch Act on Civil Proceedings Article 985 of the Dutch Act on Civil Proceedings provides that a foreign judgment is only enforceable in the if so allowed by a treaty or a statutory provision and after obtaining judicial approval for enforcement (ie, an exequatur). Article 431 of the Dutch Act on Civil Proceedings further provides that in the absence of a treaty or a statutory provision, a foreign judgment is not enforceable in the and that the case decided in the foreign judgment will be subject to re-trial by the Dutch courts. In the absence of a treaty or a statutory provision providing for recognition and enforcement, the judgment debtor will have to accept a re-trial by the Dutch courts and cannot invoke the ne bis in idem principle. In a re-trial, the court has 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 reconsidered 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 by, for example, voluntarily appearing before the foreign court; and enforcement of the foreign judgment is not contrary to Dutch public policy. Foreign judgments are mainly recognised and enforced in the on the basis of bilateral or multilateral treaties, among the latter with a number of European Regulations. Multilateral treaties Except for the European Regulations providing for reciprocal recognition and enforcement of foreign judgments, the most notable multilateral treaties to which the is party are: (i) the Revised Convention for Rhine Navigation, Mannheim, 17 October 1868; (ii) the International Convention for the Unification of Certain Rules Concerning the Immunity of State-Owned Ships, Brussels, 10 April 1926; (iii) the Convention for the Unification of Certain Rules Relating to International Carriage by Air, with Additional Protocol, Warsaw, 12 October 1929; (iv) the Convention on the Contract for the International Carriage of Goods by Road (CMR), Geneva, 19 May 1956; (v) the Convention on Third Party Liability in the Field of Nuclear Energy, Paris, 29 July 1960; (vi) the Convention concerning International Carriage by Rail (COTIF), Bern, 9 May 1980; (vii) the Multilateral Agreement relating to Route Charges, Brussels, 12 February 1981; and (viii) the Convention on Civil Procedure, The Hague, 1 March Bilateral treaties The most notable bilateral treaties providing for the reciprocal recognition and enforcement of foreign judgments to which the is party are: (i) the Convention on jurisdiction, bankruptcy, and the validity and enforcement of judgments, arbitration awards and authentic instruments between Belgium and the, Brussels, 28 March 1925; (ii) the Convention on the recognition and enforcement of judicial decisions in civil and commercial matters between Italy and the, Rome, 17 April 1959; (iii) the Convention on the reciprocal recognition and enforcement of judgments and authentic instruments in civil and commercial matters between Austria and the, The Hague, 6 February 1963; (iv) the Convention providing for the reciprocal recognition and enforcement of judgments in civil matters between the United Kingdom and the, The Hague, 17 November 1967; (v) the Convention on the mutual recognition and enforcement of judgments and other enforceable instruments in civil and commercial matters between Germany and the, The Hague, 30 August 1962; and (vi) the Convention on the reciprocal recognition and enforcement of judgments and authentic instruments in civil and commercial matters between Surinam and the, The Hague, 27 August The Conventions referred to under (i) up to and including (v) are still relevant only for those subjects that are not covered by Council Regulation (EC) No. 44/2001 (the Brussels I Regulation). Council Regulation (EC) No. 44/2001 (Brussels I Regulation) and Conventions As a member state of the European Union, the is party to what is now the principal European enforcement and recognition system, which is based on Council Regulation (EC) No. 44/2001 (Brussels I Regulation). This European legislation has direct effect in each of the member states of the EU. A plaintiff who has obtained a judgment from one member state may have that judgment enforced in all other member states. For enforcement in the, an exequatur of a Dutch court is required, issued further to a simple application. Judgments for these purposes means any order of a court in a member state, including injunctions, interlocutory orders, decrees

2 for specific performance and orders for costs, but it excludes certain matters such as those relating to arbitration, bankruptcy and windingup of corporations and revenue, customs and administrative matters. The other member states to which this Regulation applies are Austria, Belgium, Bulgaria, Czech Republic, Denmark (with effect from 1 July 2007), Estonia, Finland, France, Germany, Greece, Greek Cyprus, Hungary, Italy, Latvia, Lithuania, Luxembourg, Malta, Poland, Portugal, Republic of Ireland, Romania, Slovakia, Slovenia, Spain, Sweden and UK. Two important treaties pre-date the Brussels I Regulation: the Brussels Convention on Jurisdiction and Judgments in Civil and Commercial Matters, 1968 (the Brussels Convention) and the Lugano Convention on Jurisdiction and the Enforcements of Judgments in Civil and Commercial matters (1988) (the Lugano Convention). The Brussels Convention remains relevant mainly in relation to pre-2007 judgments from Denmark. The Lugano Convention applies in relation to Iceland, Norway and Switzerland. A new Lugano Convention that is more aligned with the Judgments Regulation was signed in 2007, and when fully implemented will apply to these three countries. European fast-track procedures Foreign judgments that have been obtained in uncontested proceedings in other EU member states (except from Denmark) can be enforced under Regulation (EC) No. 805/2004 of the European Parliament and of the European Council of 21 April 2004 European Enforcement Order for uncontested claims. A European Enforcement Order (EEO), once obtained in the foreign court, is automatically enforceable in the without an exequatur or other proceedings in the being required, and with very little opportunity for the judgment to be challenged. The European Small Claims Procedure (ESCP) established by Regulation (EC) No. 861/2007 also applies in the. This Regulation provides an alternative for cross-border claims up to 2,000 in value involving civil and commercial matters (excluding certain matters such as arbitration, employment law and bankruptcy). Where cross-border enforcement is sought, it eliminates intermediate proceedings necessary to enable recognition and enforcement as between the and other EU member states (except Denmark). A newer alternative European system now exists as well for cross-border claims the European Order for Payment Procedure (EOP), governed by Regulation (EC) No. 1896/2006. This simplified process employs standard forms and procedures across EU member states (excluding Denmark) for the recovery of uncontested monetary debts in many types of civil and commercial matters that are not the subject of any existing judgment. On receipt of an application for an EOP the Dutch court issues the order, which also informs the defendant that the information in the application has not been verified by the court, that the order becomes enforceable unless a statement of objection is lodged, and that the time limit for such objections is 30 days from the date of service. If objections are lodged, the matter then proceeds as a contested claim under the ordinary civil procedure. Arbitration awards Foreign arbitral awards to which a treaty for the recognition and enforcement applies may be enforced in the after obtaining an exequatur. The is party to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, New York, Article 1076 of the Dutch Act on Civil Proceedings under certain conditions allows for the enforcement in the of a foreign arbitral award in the absence of a treaty providing for the recognition and enforcement of the foreign arbitral award or if a treaty allows a party to invoke the laws of the country where recognition or enforcement is sought. Arbitral awards will in principle not be recognised and enforceable under article 1076 of the Dutch Act on Civil Proceedings if: the judgment debtor, asserts and proves that a valid arbitration agreement under the law applicable thereto is lacking; the arbitral tribunal is constituted in violation of the rules applicable thereto; the arbitral tribunal has not complied with its mandate; the arbitral award is still open to an appeal to a second arbitral tribunal or to a court in the country in which the award is made; or the arbitral award has been set aside by a competent authority of the country in which that award is made; or the court finds that the recognition or enforcement would be contrary to Dutch public policy. 2 Intra-state variations Is there uniformity in the law on the enforcement of foreign judgments among different jurisdictions within the country? The is a unitary state with only one jurisdiction. 3 Sources of law What are the sources of law regarding the enforcement of foreign judgments? The primary sources of law regarding enforcement of foreign judgments are article 431 and articles of the Dutch Act on Civil Proceedings for foreign judicial judgments and articles 1075 and 1076 of the Dutch Act on Civil Proceedings for foreign arbitral awards. The rules regarding the enforcement of foreign judgments and foreign arbitral awards have been further refined in case law. A landmark case decided by the Dutch Supreme Court was its judgment of 14 November 1924, NJ 1925, 91, W (Bontmantel), providing that in the event of a re-trial of a foreign judgment the court in each specific case will have to determine to what extent the foreign judgment may be recognised. 4 Hague Convention requirements To the extent the enforcing country is a signatory of the Hague Convention on Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters, will the court require strict compliance with its provisions before recognising a foreign judgment? The ratified the Hague Convention on Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters on 21 June The Convention entered into force for the on 20 August The Convention currently has only five contracting states, of which the, Cyprus and Portugal are member states of the European Union. In relations between these countries, the Brussels I Regulation prevails over the Convention. Since the two other contracting states are Albania and Kuwait, the Convention has little practical significance and little is known about its actual application by the Dutch courts. 5 Limitation periods What is the limitation period for enforcement of a foreign judgment? When does it commence to run? In what circumstances would the enforcing court consider the statute of limitations of the foreign jurisdiction? Article 3:324 of the Dutch Civil Code provides that the right to enforce a judicial or arbitral judgment becomes prescribed on the expiry of 20 years as of the day following the day of the judgment or, if for its enforcement certain conditions have to be fulfilled that are not dependent on the will of the judgment creditor, as of the day following the day on which these conditions are fulfilled. 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 Getting the Deal Through Enforcement of Foreign Judgments 2012

3 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 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 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 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 which 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. 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 Basic requirements for recognition What are the basic mandatory requirements for recognition of a foreign judgment? Article 985 of the Dutch Act on Civil Proceedings provides that the Dutch courts must recognise foreign judgments enforceable in the further to a treaty or a statutory provision. recognition and enforcement, a Dutch court will in principle recognise a 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. 11 Other factors May other non-mandatory factors for recognition of a foreign judgment be considered, and if so, what factors? The Dutch courts may suspend the enforcement of a foreign judgment during the period that the award granting the exequatur is subject to appeal (see question 24). Furthermore, the courts may under certain circumstances require the party seeking enforcement

4 to provide security to the judgment debtor during the period that the award granting the exequatur is still subject to appeal. 12 Procedural equivalence Is there a requirement that the judicial proceedings where the judgment was entered correspond to due process in your jurisdiction, and if so, how is that requirement evaluated? The Dutch courts must recognise foreign judgments enforceable in the further to a treaty or a statutory provision, and will not evaluate whether the judicial proceedings where the judgment was entered correspond to due process in the unless the relevant treaty allows such evaluation. In the absence of a treaty or statutory provision providing for recognition and enforcement, a Dutch court will in principle only recognise a foreign judgment in the event it has been rendered by a foreign court applying similar procedural safeguards as applied by Dutch courts. In evaluating this, the court will put emphasis on whether the parties were properly served with notice of the proceedings and given a reasonable opportunity to be heard. 13 Personal jurisdiction Will the enforcing court examine whether the court where the judgment was entered had personal jurisdiction over the defendant, and if so, how is that requirement met? Dutch law on civil judgments does not recognise the concept of personal jurisdiction and the Dutch courts will not examine whether the court where the judgment was entered had personal jurisdiction over the defendant. 14 Subject-matter jurisdiction Will the enforcing court examine whether the court where the judgment was entered had subject-matter jurisdiction over the controversy, and if so, how is that requirement met? The Dutch courts must recognise foreign judgments enforceable in the further to a treaty or a statutory provision, and will not examine whether the court where the judgment was entered had subject-matter jurisdiction over the controversy unless the relevant treaty allows such examination. In the absence of a treaty or statutory provision providing for recognition and enforcement, a Dutch court will in principle only recognise a foreign judgment in the event 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). In the event of a contractual clause providing for the exclusive jurisdiction of a foreign court, the court will in principle accept this forum choice and recognise the judgment rendered by this forum. An implicit submission to the jurisdiction of the foreign court by the claimant will be more easily accepted than an implicit submission by the defendant. The court may also recognise a foreign judgment when there is no voluntary submission to the jurisdiction of the foreign court, but the foreign court has assumed jurisdiction on fair and reasonable grounds. 15 Service Must the defendant have been technically or formally served with notice of the original action in the foreign jurisdiction, or is actual notice sufficient? How much notice is usually considered sufficient? The Dutch courts must recognise foreign judgments enforceable in the further to a treaty or a statutory provision, and will therefore not examine how the defendant was served notice of the original action unless the relevant treaty allows such examination. In the absence of a treaty or statutory provision providing for recognition and enforcement, the Dutch courts will in principle only recognise a foreign judgment in the event 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). The court may also recognise a foreign judgment when there is no voluntary submission to the jurisdiction of the foreign court, but the foreign court has assumed jurisdiction on fair and reasonable grounds. An important aspect for considering whether the foreign court has assumed jurisdiction on fair and reasonable grounds will be whether the defendant was properly served notice of the original action (eg, if applicable, in accordance with the rules of the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters). 16 Fairness of foreign jurisdiction Will the court consider the relative inconvenience of the foreign jurisdiction to the defendant as a basis for declining to enforce a foreign judgment? The relative inconvenience of the foreign jurisdiction to the defendant is no relevant condition in the decision of the court to recognise or decline a foreign judgment. 17 Vitiation by fraud Will the court examine the foreign judgment for allegations of fraud upon the defendant or the court? In the event of foreign judgments enforceable in the further to a treaty or a statutory provision, the Dutch courts must recognise the foreign judgment and are therefore not allowed to examine the foreign judgment for allegations of fraud upon the defendant or the court. However, if the foreign judgment loses its enforceability in its county of origin, for example, by an action for fraud filed in the country of origin prior to the moment the Dutch courts award an exequatur, the court must refuse the exequatur. will be subject to re-trial by the Dutch courts. In a re-trial the court will examine the foreign judgment for allegations of fraud upon the defendant or the court. 18 Public policy Will the court examine the foreign judgment for consistency with the enforcing jurisdiction s public policy and substantive laws? In the event of foreign judgments enforceable in the further to a treaty or a statutory provision, the Dutch courts will not examine the foreign judgment for consistency with Dutch public policy and substantive laws, unless the relevant treaty or statutory provision allows the court to examine the judgment on these aspects. will be subject to re-trial by the Dutch courts. In the re-trial the court has to determine to what extent the foreign judgment may be recognised. Consistency with Dutch public policy, and in particular with the rules of due process in the, is one of the factors the court must consider when determining to what extent the foreign judgment may be recognised. 19 Conflicting decisions What will the court do if the foreign judgment sought to be enforced is in conflict with another final and conclusive judgment involving the same parties or parties in privity? Article 985 of the Dutch Act on Civil Proceedings provides that the Dutch courts must recognise and allow the enforcement of foreign judgments enforceable in the further to a treaty or a Getting the Deal Through Enforcement of Foreign Judgments 2012

5 statutory provision. The court may deny enforceability in the event of conflicting judgments in the event the relevant treaty allows for this. Article 34 of the Brussels I Regulation provides that recognition of a foreign judgment will be refused, among other grounds, 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 of the foreign judgment, the case decided in the foreign judgment will be subject to re-trial by the Dutch courts. In the re-trial, conflict with another final and conclusive judgment involving the same parties or parties in privity may be a ground for refusing the recognition of the foreign judgment and denial of the judgments creditor s claims in the re-trial on the merits of the case. In the event of a conflicting final and conclusive judgment of a Dutch judgment involving the same parties or parties in privity, the court will in principle apply the maxim res judicata pro veritate habetur (ie, that the earlier final and conclusive judgment is final between the parties to that judgment regarding the facts, legal grounds and claims decided in that judgment). 20 Alternative dispute resolution What will the court do if the parties had an enforceable agreement to use alternative dispute resolution, and the defendant argues that this requirement was not followed by the party seeking to enforce? Article 985 of the Dutch Act on Civil Proceedings provides that the Dutch courts must recognise foreign judgments enforceable in the further to a treaty or a statutory provision. Therefore, the court has no room to examine the foreign judgment on noncompliance with a clause on ADR unless the treaty allows such examination. Noncompliance with a clause on ADR also has no impact on the enforcement of a foreign judgment under the Brussels I Regulation, as noncompliance is not explicitly mentioned in articles 34 or 35 as a reason for objection. Article 35(3) explicitly excludes applying the test of public policy to rules relating to jurisdiction, meaning that under Brussels I non-respect of an ADR clause cannot be attacked by arguing that this would be contrary to public policy in the competent jurisdiction. will be subject to re-trial by the Dutch courts. In a re-trial the court may refuse recognition of the foreign judgment, as not following a clause on ADR may constitute a violation of the rules of due process in the or may evidence that the defendant was not properly served with notice of the original action in the foreign jurisdiction. 21 Favourably treated jurisdictions Are judgments from some foreign jurisdictions given greater deference than judgments from others? If so, why? Not as a matter of law. As a matter of fact, however, the Dutch courts may be more inclined to recognise foreign judgments from countries applying the rule of law than from countries not applying that rule. 22 Alteration of awards Will a court ever recognise only part of a judgment, or alter or limit the damage award? In the event of foreign judgments enforceable in the further to a treaty or a statutory provision, the Dutch courts must recognise the foreign judgment and are therefore not allowed to recognise only part of the judgment, or to alter or limit the damage award. will be subject to re-trial by the Dutch courts. In a re-trial the court has to determine to what extent the foreign judgment may be recognised, and is therefore in principle free to recognise only part of a judgment, or to alter or limit the damage award. 23 Currency, interest, costs In recognising a foreign judgment, does the court convert the damage award to local currency and take into account such factors as interest and court costs and exchange controls? If interest claims are allowed, which law governs the rate of interest? According to article 6:123 of the Dutch Civil Code, in the event a foreign judgment provides for a damage award in a foreign currency the judgment creditor may, but is not obliged to, claim payment in euros, the local currency in the. In the event enforcement in euros would not fully settle his or her claim, the creditor remains entitled to claim payment in the foreign currency. According to article 6:123 of the Dutch Civil Code, in the event of enforcement in euros, the foreign currency will be converted into euros at the exchange rate of the date of payment. According to article 988(3) and article 237 of the Dutch Act on Civil Proceedings, the court may, and in principle will, sentence the judgment debtor to pay the judgment creditor s costs, including court fees, incurred by applying for the exequatur. In the event the exequatur will be denied, the judgment creditor as the losing party will in principle be sentenced to pay the judgment debtor s costs and court fees. The winning party s costs are not awarded on the basis of the actual costs spent, but on the basis of a scheme of liquidated costs per action. Interest claims are allowed. The rate of interest is in principle governed by the law applicable to the original action in the foreign jurisdiction. 24 Security Is there a right to appeal from a judgment recognising or enforcing a foreign judgment? If so, what procedures, if any, are available to ensure the judgment will be enforceable against the defendant if and when it is affirmed? Article 989 of the Dutch Act on Civil Proceedings Appeal allows for appeal with the Appellate Court against the decision of a Dutch court to award an exequatur for enforcement of a foreign judgment. The appeal must be lodged within one month after the date of the court s decision. From a judgment of the Appellate Courts, appeal is possible to the Dutch Supreme Court, but only if the Appellate Court applied the law incorrectly or its judgment lacks sufficient reasoning; facts are no longer subject of discussion. Appeal to the Supreme Court must also be lodged within one month after the judgment of the Appellate Court. Appeal against the award granting an exequatur does in principle not suspend the right to enforce the foreign judgment, unless the court has provided for suspension of enforcement in its decision. Furthermore, the court may require the party seeking enforcement to provide security to the defendant. During the appeal, the judgment creditor may ensure recourse of its claim on the judgment debtor by making conservatory arrests. Moveables, immoveables, shares, bank balances and receivables may all be subject to conservatory arrest. Permission for conservatory arrest may be applied for to the court by simple application. The court will in principle allow the conservatory arrest, unless it finds the claim prima facie invalid or the arrest disproportionate.

6 25 Enforcement process Once a foreign judgment is recognised, what is the process for enforcing it in your jurisdiction? Once an exequatur has been obtained or if a foreign judgment is directly enforceable on the basis of the EEO, ESCP or EOP Regulations, the judgment can be sent to the bailiff who may use the coercive measures provided for in Book 2 of the Dutch Act on Civil Proceedings to enforce the judgment on the judgment debtor. These coercive measures may include the public auction of the debtor s assets and, in the event of an order for specific performance, as ultimum remedium, the possibility to take the debtor in custody. Update and trends In December 2010, the European Commission proposed a reform of Brussels I whereby the declaration of enforceability (exequatur process) shall be abolished. This would mean that foreign decisions subject to European regulations would be directly enforceable. Only the execution could still be stopped, but only on very narrow grounds (such as a violation of fair trial rights by the foreign court). Depending on the outcome of the public consultation on this proposal, a legislative initiative is planned for Pitfalls What are the most common pitfalls in seeking recognition or enforcement of a foreign judgment in your jurisdiction? Except for the complexity of the different rules applying to the recognition or enforcement of foreign judgments (ie, Dutch private international law, European regulations and bilateral and multilateral treaties), there seem to be no real pitfalls in seeking recognition or enforcement of a foreign judgment in the. Philip WM ter Burg Femke Faes p.terburg@bvvg.nl f.faes@bvvg.nl World Trade Center, Tower A Johan de Wittlaan 15 Strawinskylaan JR The Hague 1077 XX Amsterdam The The Tel: Tel: Fax: Fax: Getting the Deal Through Enforcement of Foreign Judgments 2012