Editor’s Note (SP): For Part 2 of this article, please use this link: http://www.llrx.com/features/clusteringsearch2.htm
Norel Rosner is Assistant Professor at the Department of Private and Notarial Law, University of Groningen, The Netherlands.
Article 431 of the Dutch Code of Civil Procedure (hereinafter Rv)*, enacted in 1838, essentially denies any affects to foreign judgments. It has apparently been drafted following the rationale according to which justice done elsewhere does not necessarily have to coincide with justice done in the Netherlands. This concept presupposed that the idea of justice may be confined to national boundaries, at least in so far as it concerned justice pronounced by the courts.
Nevertheless, even tough the legislative provision has not been amended to this very day, the Dutch courts modified essentially the written law as to accept justice done elsewhere, as long as it does not trigger any injustice done in the Netherlands.
The current article will begin by presenting the legislative provisions dealing with the recognition or enforcement of foreign judgments absent a treaty. It will then continue with a presentation of the case law on the matter, thus taking the reader through the evolution of the Dutch approach to the above-mentioned subject matter.
One remark prior to the commencement of this article: I will focus only on judicial decisions, with the exclusion of any reference to arbitral awards. Likewise, since the article deals mainly with execution of money awarding judgments, this chapter will only marginally touch upon status judgments and the recognition thereof. Family law matters, including maintenance judgments, as well as bankruptcy decrees do not form a part of the issues treated hereinafter.
* For an overview of Dutch legal materials available online see http://www.law.nyu.edu/library/foreign_intl/netherlands.html
Even though the bulk of foreign judgments brought for execution in the Netherlands are being enforced by virtue of an international treaty, the regime of judicial decision originating from countries with which no such documents applies is being governed by article 431 Rv: Since 1st of January 19921 foreign authentic deeds were included under the provisions of article 431. In its current form, it reads as follows:
1. Behoudens het bepaalde in de artikelen 985-994, kunnen noch beslissingen, door vreemde rechters gegeven, noch buiten Nederland verleden authentieke akten binnen Nederland ten uitvoer worden gelegd.
2. De gedingen kunnen opnieuw bij de Nederlandse rechter worden behandeld en afgedaan.”
“1. Except for what is stated in articles 985-994 Rv, no decision rendered by foreign judges, nor authentic deeds issued abroad can be enforced within the Netherlands.
2. The matters can be dealt with and settled de novo by the Dutch judge.”2
2.1 Several comments on article 431 Rv
“Should judgments be purely territorial, with no effect outside the rendering state? I did not believe anyone today would take that position, until I learned that, absent a treaty, that is the law in as generally enlightened and internationalist countries as in the Netherlands, Norway, and Austria.”3
Indeed, article 431 Rv states clearly that, unless otherwise stipulated in legal provisions or treaties to which the Netherlands is a party, decisions issues by foreign courts may not be executed in this country. The interested party may begin new proceedings which can result in an enforceable Dutch judgment.
It seems that as the provision stands now, it contains three separate parts:4
- The basic principle denying effect to foreign judgments
- The rule thereof, stating the case would be settled do novo by a Dutch judge
- The exception, contained in the express reference to articles 985-994 Rv
The principle enunciated by this provision is rather clear: Foreign judgments may not be executed in the Netherlands. Nevertheless, not all judgments are susceptible for execution. Certain judicial decision, as for instance in family, law matters, are of constitutive nature, in other words they create or alter a legal status. These judgments may not be executed; All that they require is recognition of their binding effects, of their res judicata statute. The question that arises is whether the provision covers both recognition and enforcement or only the later. At least part of the literature, even during the XIXth century5, was of the opinion that this provision is limited to execution of judgments. The Dutch Supreme Court (hereinafter the Hoge Raad), however, was of the opinion in 1902 that:
“…geen verschil is tusschen eene gerechetlijke tenuitvorlegging van een vreemde vonnis en het verbod om daarmede strijdende aanspraken voor den Nederlanschen rechter geldend te maken.”6
No difference should be made between the judicial execution of a foreign judgment and the preclusion of its use in order prove a certain issue under dispute before the Dutch court7. In other words, the court allowed effect to what it considered the legislator had in mind in 1838, when the provision was drafted at a time when the sovereignty doctrine received significant support 8. Since using a judgment as a mean of evidence implies its recognition, a refusal to do so would be equivalent with denial of recognition. Nevertheless, the Hoge Raad in particular and the Dutch judiciary in general came a long way from the 1902 decision. The following sub-section will show how and in which manner.
The original text of 1838 made reference only to foreign judgments (NL:”Vonnissen“). After the modification of 19649 the text of the provision covers judicial decision (NL.: “beslissingen, door vreemde rechters gegeven“) issued by foreign judges. The 1992 revision10 brought with it the introduction of foreign authentic acts under the realm of article 431 Rv.
Under the term judicial decision issued by foreign judges, the legislator had most probably in mind a term which will cover not only judgments as such, but also other decisions issued by courts in foreign countries. For instance an Australian injunction, perhaps equivalent to Dutch “kort geding“, summary proceedings judgment, would be included under the realm of article 431. On the other hand, the article is not intended to cover foreign arbitral awards. This is clear both from the language of the provision and form the fact that this type of decision is being treated in article 1076 Rv. As probably noticed so far, this work uses alternatively the terms foreign judgments or foreign judicial decisions. My intention is to cover here, by using either term, decisions issued by foreign judicial authorities that are susceptible for execution based on article 431 Rv
Needless to mention that the term foreign judges does not include judicial authorities issuing decrees, judgments or other judicial decisions on behalf of the Queen of the Netherlands. In other words, article 431 does not refer to Dutch judges, wherever they may be within the Kingdom, in or outside Europe. In other words, judgments issued by court in the Netherlands Antilles or Aruba are treated as Dutch judgments11 . Those emanating from other territories that in between gained their independence, like Surinam or the New Guinea, are also considered to be national, provided of course that they were pronounced prior to the respective declaration of independence12. Likewise, Dutch consular judicial decisions are assimilated to Dutch decisions, even though they are being issued in a foreign country13 . However, these decisions may not touch upon matters of property law.
The issue which has been already settled abroad should be dealt with de novo by a Dutch judge – this is the rule upheld in the second paragraph of article 431 Rv . One of the questions which comes to mind when analyzing this rule is whether the matter will be tried again, that is without taking into account the existence of the foreign judgment, or is it the case rather that the foreign judgment will retain some significance.
From the literature14 and the case law15 available at this point it seems that the Dutch judge seized with the new case would face serious difficulties if he chooses to ignore the foreign judgment. Its very existence may not be ignored, for various practical reasons; In many cases, especially when the foreign judgment has been issued by a competent judge, the court first addressed is in the best position to administer the evidence and to asses the conflict situation. Moreover, in case the law applied is the lex fori, the foreign judge would be again in the best position to apply that law to the case at hand. Beginning to try the case all over again, calling for witnesses from abroad or applying a foreign law might prove to harm the very outcome of the case. This is why the factual existence of the foreign judgment may not be ignored. The Dutch judge, while not opening a simple exequator procedure, will try the case in an ordinary procedure by analyzing other elements than in such a regular procedure. A review of these elements will be considered infra. in this article.
The first paragraph of article 431 Rv makes reference to cases where execution of foreign judgments is not governed by this provision, but rather by articles 985-994 Rv. The later contain rules for the grant of exequator, in cases where a legal provision or a treaty so requires. It would be mentioned that no such law exists at this time,16 and many of the treaties to which the Netherlands is a signatory party, such as for instance the Brussels Convention17 contain separate provisions for exequator.
Worth mentioning here that the exequator instituted by articles 985-994 contains rules on the competent court to issue the decision, that is the domicile of the party against whom execution is sought and the court where the execution should take place, on fair trail, including the hearing of the party against whom execution is sought after proper service of process and the possibility of appeal and, if need be, review in cassation.
3.1 The role played by the court system
The Netherlands belongs to the European continental legal system. One of the basic features of this system is that the legislative branch of the government, in many cases that being the Parliament, has the exclusive right of issuing laws and regulations. Sometimes, as it is the case for example in France, the executive branch may have some legislative responsibilities, clearly defined in the supreme law of the land, the Constitution. Nevertheless, the court system, the judicial branch, is only empowered to interpret and apply the existing body of laws to the legal conflicts that come to its resolution. The judges, even at the highest level, lack the authority to make laws, as it is the case in the common law systems. Of course a decision by the highest court might serve as guidance for lower instances or even for the other branches of government, but these decisions may under no circumstances supersede written statutes.
Having mentioned that, the interpretation of certain legal provisions by the courts may be at times so far reaching and revolutionary, that in fact one can classify such conduct as being at the very edge of the legislative branch of the government. Of course such an interpretation may never go against the letter of the written law, but may fill in some gaps left by the legislator or adjust the provision to certain new circumstance that were initially difficult to foresee.
This is how article 431 Rv survived for more than one and a half century. Indeed, in a country whose openness towards the outside world is notorious, one may only wonder how such a restrictive provision towards foreign judgments, as it is the case with article 431 Rv, has survived. The answer to the above mentioned question lies in the present sub-section; Through its case -law, the Dutch judiciary developed a certain interpretation that allows some degree of recognition for foreign judgments, while preserving the spirit of article 431 Rv as it was at the time when the provision has been enacted in 1838.
3.2 Recognition v. enforcement
Not all judgments are susceptible for execution; Certain judicial decisions, as for instance very often occurs with those rendered in family law matters, or with those establishing de iure a property right which already exists de facto, do not require special coercive measure to be employed by the state where the execution should take place. In these cases, such judgments are only susceptible for recognition, that is to say for a process that will impede the retrial of the same cause of action among the same parties. Recognition of a foreign judgment presupposes also binding authority between the parties and leads to the use of the foreign judgment as evidence in a new procedure18.
Enforcement of a judgment, on the other hand, presupposes the employment of state coercive power, essentially an exercise of state sovereignty. Likewise, whereas recognition as such does not form the main cause of action but appears rather as the incidental matter, execution may well form the main issue in a case.
The question that arose after the enactment of article 431 Rv was weather the provision covers both recognition and enforcement of foreign judgments, or is it the case that only the later is being regulated by this article.
Under the influence of the sovereignty doctrine, for much of the XIXth century and the beginning of the XXth, the prevailing opinion19, accepted with some notable exceptions by the Hoge Raad 20 and despite the contrary opinion expressed in parts of the literature21 , was that article 431 covers both recognition and enforcement of foreign judgments.
This broad interpretation was best expressed by the Hoge Raad in the Prince Hendrik case22. Under the fact pattern of the case, after a collision between two vessels, one Dutch, Prince Hendrik, whereas the other one, s.s. Gotha, British, the Admiralty Court in England found the Dutch carrier at fault and allowed damages for the British company. The Dutch party turned to a court here in the Netherlands, this time as plaintiff, essentially requesting the establishment of the fault with the British company and the award of damages. In his defense the defendant made reference to the English judgment, asking the court to recognize the res judicata effects of that judgment. In denying to recognize such effects, the Hoge Raad essentially was of the opinion that:
“Waar de rechter optreedt als een der organen van het Staatsgezag, zijne uitspraken als zodanig alleen gelden voor het grondgebied waarover het gezag zich uitstrekt, en daar buiten alleen verbindend zijn op zodanige wijze en onder zodanige voorwaarden als de bevoegde macht in elken betrokken Staat heeft voorgeschreven;”
In other words, while reinforcing the sovereignty doctrine, the court was of the opinion that judgments, be it condemnatory or declaratory, create legal effects only on the territory where they are rendered and, in total agreement with the sovereignty doctrine, the competent authority in each State, in the Netherlands’ case the Parliament, will decide under which conditions a foreign judgment may have effects on that territory. Furthermore, on the issue whether article 431 Rv covers both recognition and enforcement or it is rather limited to the later, the court stated unequivocally that it sees no difference between execution of such foreign judgments or their use in order to proof a certain issue before a Dutch judge;
““…geen verschil is tusschen eene gerechetlijke tenuitvorlegging van een vreemde vonnis en het verbod om daarmede strijdende aanspraken voor den Nederlanschen rechter geldend te maken.”23
In other words, the court refused even to allow evidence authority to a foreign judgment, an element of the recognition process that implies the granting of a lesser degree of authority to the foreign judgment. It seems to me that, a fortiori, such refusal extends to res judicata as well, the most important aspect of recognition.
The Prince Hendrik case interpreted article 431 Rv in a rather broad manner. Assuming that judgments are strictly territorial and every State retains the competence to allow the degree of recognition it deems acceptable, the case under review here concluded that in the Netherlands article 431 Rv prohibits the granting of any effects to foreign judgments.
Nevertheless, the holding of the court in Prince Hendrik was valid law only until 1916, when the Hoge Raad 24 was seized with the recognition of a divorce pronounced in New York between two spouses holding Dutch nationality. The issue of the recognition was raised as the incidental question, in a case dealing essentially with a claim for the allowance of a life insurance premium to the parent who received custody after the divorce decree pronounced by a court in New York. Mrs. Meelen, the respondent at the Hoge Raad, whose claim was initially denied before the District Court the Hague (hereinafter Rechtbank), lodged an appeal with the Court of Appeal the Hague (hereinafter Hof). Before this later forum the lower court’s decision was reversed, and the amount of money due to the child’s legal guardian was assigned to the respondent. In other words, by explicitly recognizing the New York divorce decree and the custody decision that followed, the court was able to allow the premium to the party who had legal custody of the minor child. Rejecting the claim that article 431 Rv stands in way of granting such recognition to foreign judgment, the Hoge Raad, with whom an appeal in cassation has been lodged by the defendant in the initial proceedings, explicitly stated that:
“art. 431, hetwelk alleen verbiedt een vreemd vonnis met de door de Nederlandsche wet gegeven executiemiddelen ten uitvoer te leggen.”
A more explicit conclusion is hard to imagine. Article 431 Rv, so concludes the court, prohibits only the execution of a foreign judgment. When no such enforcement measures are needed, such as is the case with judgments creating or altering legal status, the so-called, constitutive judgments, than article 431 Rv does not stand in the way of recognition.
The New York divorce case is still the law in the Netherlands. In other words, under certain conditions, to be analyzed bellow in depth, recognition of foreign judgment is possible. Article 431 Rv impedes only the granting of a Dutch exequator, that is the extension of Dutch legal authority to a judgment rendered abroad.
Of course not all judgments are susceptible for both recognition and enforcement. In fact, only condemnatory judgments, those that prescribe a certain kind of conduct that the parties have to obey by, may be executed. Money judgments, of course in case they award money damages rather that denying them, forming the focus of this article, are almost without exception susceptible of execution. On the other hand, constitutive judgments, that is to say the ones creating or altering legal status, declaratory judgments, for instance establishing a certain legal situation in property law or intellectual property law, and dismissal judgment, whereby a claim is being denied, are not susceptible for execution. These later judgments may produce their full effects the moment they are being recognized.
As stated above, when assessing the effect a foreign judgment will have in the Dutch legal system, the court will look at a number of conditions which need to be fulfilled. Although initially these requirements were used in order to decide whether recognition solely was feasible, later on the fulfillment of these conditions, as described above, was sufficient in order to extend a leave for exequator in a new Dutch procedure opened in accordance to article 431 Rv. Whereas the literature25 seems to agree to a set of minimum three requirements, jurisdiction of the court of origin, respect for due process rules and non-infringement of Dutch public policy, some authors would add the condition that the foreign judgment is final and conclusive (no longer appealable)26 or even a fifth condition covering the possible conflicts with an already existing judgment27.
In my opinion the last condition might be very well included within the scope of the non-infringement of Dutch public policy. As a consequence, the following lines will contain an analysis of the first three conditions as mentioned above, namely acceptable jurisdiction of the court of origin, non-infringement of Dutch public policy and respect for due process rules. Finally, the finality requirement will be analyzed not as a separate condition, but rather as a time indication.
4.1 The jurisdiction of the court of origin
Why this condition?
Even though several double conventions ceased to make reference to this requirement when assessing the feasibility of recognition or enforcement of foreign judgments, a famous example of such a treaty being the Brussels Convention28, this condition is still being upheld in the Jus Commune as a reminiscent of the sovereignty doctrine29. Indeed, in case for instance a certain legal system possesses exclusive jurisdiction rationae materiae, in accordance with the lex rei sitae, no court in that legal system would recognize or enforce foreign judgments on the statute of the real estate property located within the territorial boundaries of the state addressed. The refusal to recognize that judgment would most probably be based on the lack of jurisdiction of the court of origin, in conformity with this criterion.
Furthermore, having foreign judgments rendered by courts which lacked jurisdiction might encourage parties to engage in forum shopping, thus having their case tried before a court whose legal system allows for the most positive results, and subsequently having that judgment enforced against the debtor or his property situated in the state addressed.
This requirement is well connected to the other conditions for recognition or enforcement; For instance, it may well be that some jurisdictional rules are matters of public policy, their infringement amounting to a violation of that condition as well. Likewise, in case the court of origin assumed jurisdiction which may amount to an infringement of the rights of the defendant, for instance based on the forum actoris rule, then both the jurisdiction criterion and the one covering respect for due process rules are being infringed upon.
The jurisdiction of the court of origin may be assessed in accordance with several standards30: Those upheld by the legal systems of the court of origin, those enacted in the addressed state or in accordance with an independent standard, as upheld in international instruments. The Dutch judiciary31 has chosen to apply the test while looking at internationally accepted criteria for establishing jurisdiction, thus the third standard above described. For instance the court in Rotterdam32, when asked to grant an exequator for an American judgment, looked at the fact that the American court in Jacksonville, Florida established jurisdiction based on an internationally accepted ground, namely forum solutionis contractus.
Internationally accepted forums before the Dutch courts
1. Forum rei
This is one of the most accepted international grounds for establishing jurisdiction. It follows essentially the maxim “actor sequitur forum rei”, that is to say that the law lean in favor of the defendant. As a result, one of the most “natural” forums in international law is considered to be the court of defendant’s domicile or habitual residence, or in case of multiple defendants where one of them is domiciled33. The domicile of the defendant will be established in accordance with the law of the court first addressed. On this matter, one may not reasonably expect the court of origin to apply the procedural law of the country where recognition or enforcement might be sought at a letter date. This question is particularly relevant in case the defendant is a company or a legal person since different legal systems may apply different standards in order to establish such domicile. Accordingly, if for instance the Netherlands applies the standard of the statutory seat, Germany or France would look rather at the place where the central administration is located in order to establish domicile34. Like stated above, a court in the Netherlands may not impose its own standards of establishing domicile, in this case the statutory seat rule, on a foreign court. What is important is that the defendant has been summoned before his or her natural judge, at the place of his or her domicile or habitual residence.
Worth noticing in this context is that this ground for establishing jurisdiction represents the main rule upheld by the Brussels Convention and the EC Regulation that was enacted in the year 2000.35 Likewise, this forum is the main jurisdictional rule as upheld by the to-be Hague Jurisdiction and Execution Convention36.
2 . Jurisdiction of the forum where a branch, agency or other establishment is located
Although on this issue there is no extensive case-law available, this ground has been upheld in a number of international legal instruments, significant among them being the Brussels Convention in article 5(5) or the new Hague Convention in article 9. Worth being noticed in this context that the dispute has to result from the operation of that branch, agency or other establishment in order to make room for the jurisdiction of that forum.
3 . The forum chosen by the parties
The Brussels Convention contains such a rule in article 1739, whereas the new Hague Convention makes reference of the forum choice in article 4. Moreover, as stated above in the chapter dealing with international instruments, both documents contain provisions as to the conditions that need to be fulfilled by such a court agreement in order to be valid.
The Hoge Raad has dealt at least twice40 recently with the question of the validity of jurisdiction assumed on such an agreement between the two parties. Not only is such a jurisdictional ground acceptable, but also it precludes a Dutch court from assuming jurisdiction in that case, even though had it not been for the parties’ agreement the jurisdiction would have been established41. Nevertheless, in case by virtue of a legal statute or a treaty to which the Netherlands is a contracting party a Dutch court would posses exclusive jurisdiction, than the agreement on choice of court concluded by the parties would lack validity.
4 . Voluntary submission
Provided that a Dutch court does not posses exclusive jurisdiction over a certain dispute, the mere appearance of the defendant in the foreign proceedings, with the purpose of defending on the merits of the case and not solely to contest the jurisdiction of the court, would be considered as establishing the jurisdiction of the court of origin.42
The foreign plaintiff will be bound not only by the decision rendered in the principal matter under dispute, but also in the decision rendered on his or her counterclaim43 . As a consequence, introducing a counterclaim amounts to an acceptance of the jurisdiction of that court and thus to voluntary submission.
As was the case with the previously mentioned forums, this ground too is mentioned in the Brussels Convention in article 18, the EC Regulation that followed, in article 24, and in the draft Hague Convention in article 5.
5. Forum connexitatis
Under the condition that it does not infringe upon the agreement of the parties as to the chosen court, or upon rules of exclusive jurisdiction44, the court seized with the principal matter will posses jurisdiction in counterclaims or third party proceedings too. The Brussels Convention and the recent EC Regulation accept this forum in article 6(2) and (3). The draft Hague Jurisdiction and Execution Convention mentions the forum connexitatis in article 15 (counterclaims) and 16 (third party proceedings).
Nevertheless, this ground of jurisdiction may not be abused in order to deny to the third party involved a trail before the judge who would be otherwise competent.45
6. Forum delicti
In case of torts or delicts, it is internationally acceptable that not only the courts of the place where the damaging act occurred would posses jurisdiction, but also those of the place where the injury arose. One may envisage that in particular in the framework of claims arising out of environmental torts the forum of the later court would become relevant. The draft Hague project of a Jurisdiction and Execution Convention contains this ground for establishing jurisdiction in its article 10. However, claims submitted at the place where the injury arose may relate exclusively to that injury and may not encompass injuries which arose in other places. The Brussels Convention refers to this forum in its article 5(3). Nevertheless, it was only in 1976, through the interpretation of the Court of Justice of the European Communities46, that the forum of the place where the injury occurred has been specifically added.
7. Forum rei sitae
The court of the place where an immovable property is situated will posses jurisdiction in matters related to rights in rem concerned with that particular property. In the Brussels Convention this ground of jurisdiction is extended to cover tenancies of such property. Moreover, both the Brussels Convention (art. 16, EC Regulation art. 22) and the draft Hague Convention (art. 12) enlist this ground as one of the few exclusive forums.
8. Forum solutionis contractus
In disputes arising out of contracts, the court of the place where the obligation in question has been performed or should have been performed. Unlike the opinion of Verheul, I consider this ground to be well established, not only in treaty law47 but also in Dutch case law48 .
9. Forum arresti
In case the dispute is related to the cargo or freight of a ship which has been arrested in order to secure that payment, the courts of the place where that ship has been arrested49 will posses jurisdiction.
10. The forum of the plaintiff economically weaker party
Despite some opinions to the contrary50, I consider this ground to be more and more acceptable at the international level. The approach to this matter in the new Brussels I Regulations reinforces this point of view; Indeed, if the original version of the Brussels Convention makes reference only to consumers and insurance policy holders (articles 12 and 15) the new Regulation adds a separate section dealing with employment contracts, according to which the employee, as the economically weaker party, may sue at the place where the work has been carried out (art.19). The draft Hague Convention contains such special provisions for consumer and employment contracts (articles 7 and 8). However, while this forum is well established, one may find border cases whereby the economically weaker party will be difficult to establish (I.e. large insurance policy holders).
11. The last domicile of the deceased
For disputes related to wills sand successions, the courts where the deceased has had his or her last domicile would posses jurisdiction51 .
This list of forums considered to be internationally accepted before the Dutch courts is not exhaustive. While it contains the bulk of possible forums in civil and commercial matters, one would have to take into account the flexibility of this list. Indeed, since this list makes direct reference to international legal instruments, it is quite clear that once new forums are accepted at that level, the Dutch court will most probably acknowledge these developments. The same may occur with forums that are no longer acceptable and thus would be considered to be unacceptable by Dutch courts.
As stated above, while this criterion seems to be fair due to its reference to international, neutral standards, it has the significant drawback of not providing sufficient legal certainty. In order to improve this situation, it seems to me that future legislative measures on this field will have to contain an addendum with a clear catalogue of forums considered by the Dutch legislator to be internationally acceptable.
4.1 Public Policy
The legal concept of public policy (in Dutch openbare orde, in French ordre public, in German Vorbehaltsklausel) might be briefly defined as comprising the basic legal principles that lie at the core of a legal system. Nevertheless, one may notice that such a broad definition leaves too much room for interpretation. Further clarification is therefore needed.
In order to narrow down this legal concept with the aim of analyzing precisely how does public policy intervene in the process of recognition or enforcement of foreign judgments, one would need to make certain distinctions: Firstly, the concept might find different interpretations in different legal fields. A certain interpretation of public policy is applied in criminal law, another in administrative law and a different one in private international law. Only in the later public policy will encompass core legal principles of a certain country, the type of principles that may suffer no infringement through application of foreign law or recognition or enforcement of foreign judgments52.
Several cases from the beginning of the 20th century might be quite relevant for the purposes of defining the concept of public policy in private international law: Accordingly, Kosters53 mentions a numbers of decisions where foreign law was denied application due to its conflict with “de nationale zeden of rechtsorde“54 (the national morals or legal order), “de wetten die handhaven de zedelijke kern van de eigen wetgeving, datgene dat wortelt in de rechtsovertuiging en de goede zeden van de rechtsgemeenschap“55 (the laws that vindicate the moral core of the legislation, those which have their roots in the legal perception and the good morals of the legal community), “de wetten, welke in het belang der gemeenschap de rechten der bijzondere personen beperken“56 (the laws that in the interests of the society limit the rights of certain persons).
As one may notice, these decisions from the first half of the XXth century refer mostly to core principles encompassing moral perceptions of the Dutch society. In other words, the courts referred in this case to rules of public law, laying down core legal principles. Nevertheless, as Verschuur57 rightly notices, the concept of public policy varies in space and time. Nowadays this concept encompasses both a public and a private law dimension. It concerns mostly core rules for the protection of human rights and individual freedoms, be it of political, social or economic nature.58
National v. International Public Policy
As stated above, the concept of public policy varies in accordance with time and place. Consequently, this term will vary from one legal system to another. Furthermore, besides the national interpretation of public policy, this concept will encompass international aspects, or in other words international public policy59 : For instance, one may imagine that international comity may preclude a Dutch court from recognizing a decision which does not, as such, infringe upon Dutch public policy, but rather upon the rules emanating from a treaty to which the Netherlands is party. To make this case even more concrete, one may think of the following situation: A Dutch judge is called upon to recognize or to grant exequator to an American judgment dealing with an immovable property situated in Belgium. The Dutch court will refuse to grant such recognition or execution since due to article 16 of the Brussels Convention Belgian courts are exclusively competent to deal with that dispute. The American judgment is denied effects since it infringes upon international public policy.
In this context worth being noticed is the fact that the Explanatory Memorandum60 of the Dutch Second Chamber of the Parliament drafted with the occasion of the adoption of article 1076 Rv, dealing with recognition and enforcement of foreign arbitral awards, states clearly that in cases of conflict with international public policy such arbitral awards may not be recognized or enforced.
Internal v. External Public Policy
The principles that lie at the core of Dutch public policy may be divided in accordance to two main criteria61, both of which are relevant not only for the issue of applicable law62, but also for recognition or enforcement questions63:
- A first criterion, the external one, contains principles of absolute applicability, irrespective of whether the case at hand has any connection with the Netherlands. These principles are of such crucial importance, that their infringement, by any courts and vis-a-vis any parties, call for immediate refusal of recognition or execution of such a judgment. One may thing in this context of foreign judgments where parties are not equal or even where the law applied to the merits contains unacceptable provisions64. Of course in this later case the control of the Dutch judge will edge a revision au fond, but this will not be necessary in case the party contesting the foreign judgment will only refer to the content of that law, not to the way it has been applied to the facts of the case.
- If the first group contains a rather objective criterion, the second one, also known as the internal one65, deals with a more subjective one, one that may vary on a case by case basis. In other words, even though the foreign judgment is prima facia recognizable, the consequences of its reception in the Dutch legal system may not be acceptable, and thus preclude the recognition or enforcement of such a judgment66.
If the former criterion finds its applicability mostly in question related to the applicable law, the later one is of more interest for the purposes of this thesis. Indeed, when a Dutch judge is reviewing a foreign judgment in order to decide on its effects under the Dutch legal system, he will look rather at the consequences such recognition or enforcement will have in the Dutch legal system, thus if that judgment fits in the Dutch legal system, rather than if the judgment in itself is just or rendered in accordance with Dutch laws67 .
The effet attenue
If the Dutch courts will rather look, in the framework of their assessment, at the consequences which the recognition will trigger for the legal system, then the solution of the foreign court, in itself, does not necessarily need to accord to the solution which might have been rendered by a Dutch court in a similar case. Just as in the French legal system68, one may speak here of the “effet attenue“, or the attenuated effects, of the public policy69. This means that public policy will intervene as an obstacle for recognition or enforcement of foreign judgments only in exceptional cases, when core principles of the Dutch legal system were violated or will be so if recognition or enforcement will be granted. The mere fact the foreign court arrived to a different solution than that which would have been achieved by a Dutch court does not suffice in order to refuse recognition or enforcement70 .
Non-infringement of due process rules
Procedural rules, such as proper and timely notice of the procedure, appeal possibilities or reasoning for the issued decision are fundamental principles of Dutch procedural law. Their violation abroad, in a foreign procedure, signifies an infringement upon the external criterion of public policy and, as a result, precludes the recognition or enforcement of the foreign judgment. One could analyze this condition as an integral part of the public policy requirement. However, for a more efficient presentation, I will deal with it separately, below.
Absence of a conflict with an existing Dutch judgment
In order for the foreign judgment to fit in the Dutch legal system, in accordance with the internal criterion of public policy, it needs not be in conflict with an already rendered Dutch judgment on the same matter and between the same parties.
In spite of the fact that in international civil procedure this condition is rather common71, under the Dutch legal system it may not be taken for granted. This has to do with the fact that two Dutch judgments rendered in the same cause of action between the same parties may coexist together. Furthermore, under article 67 Rv (article 236 in the new version of the Code of Civil Procedure, in force since January the 1st 2002) the judge will not apply the res judicata effects ex officio 72. Instead, the party interested in referring to such a previously rendered judgment will need to raise the issue before the court.
Nevertheless, even though a minority of writers73 would consider the aforementioned situation to extend to foreign judgments as well, nothing could be more wrong74. If in the same legal system such a situation may be tolerated, in the process of reception of foreign judgments the necessary measures have to be taken to ensure that the Dutch legal order is not affected. Non-conflicting situations with an earlier Dutch judgment rendered between the same parties on the same cause of action is of course one of these necessary measures. However, as a peculiarity of the Dutch legal system, this matter would have to be raised before the court by the interested party. Otherwise the Dutch judge will not look ex-officio at potential conflicts with previously rendered judgments.
It should be noted in this context that in case the previously rendered Dutch judgment is still open for appeal then the court seized with the recognition matter will stay proceedings until the term for appeal has elapsed or, as the case may be, the appeal proceedings have been exhausted. A pending Dutch procedure that might lead to a conflicting judgment is of relevance for this matter only is so far as it has been opened before the foreign procedure75.
Fraude and fraude a la loi
Foreign judgment rendered as a result of fraud committed by one of the parties or which were rendered with the sole purpose of evading the applicable law on the fact-pattern under dispute, the so-called fraude a la loi, may not be recognized or enforced in the Netherlands76. Such type of judgments will be in conflict with basic principles of Dutch law77 . They are in breach of the external criterion of the public policy. Indeed, while their reception under Dutch law might be tolerable, the fact that they were rendered under such circumstances makes them not feasible for either recognition or enforcement.
As mentioned above, attempts to evade the otherwise applicable law, in other words fraude a la loi, will also be sanctioned by Dutch courts with refusal to grant recognition or enforcement78. Nevertheless, as concluded above, Dutch courts will recognize or execute a foreign judgment in which the law applied was different than the one otherwise indicated by the Dutch rules of private international law79. Therefore, unlike French law, in the Netherlands no conflict of law test is applied in the process of recognition or enforcement of a foreign judgment. The notable exception from this rule is constituted by judgments on adoption decrees in which Dutch nationals are involved80.
Verschuur81 is of opinion that in case in the country of the court of origin the party against whom the fraud-based decision has been rendered does not make use of appeal possibilities than the public policy condition here in the Netherlands may no longer be invoked. I would disagree with this opinion. The fact that the defendant did not make use of the appeal ways is of course regrettable, but that does not remove the illegal character of the judgment. That judgments still infringes upon core principles of Dutch law, thus the external criterion of the Dutch public policy, and as a res
ult may not be recognized or enforced.
4. 3 Due Process
Even though I consider this condition to be included in the public policy requirement, for practical reasons it will be treated separately. Strikwerda and Verschuur82 are right to claim that treating this condition separately or as a part of public policy does not have any serious consequences. The fact of the matter is that a foreign judgment rendered with disregard of basic principles of procedural law will infringe upon Dutch public policy, constituting therefore a ground for refusal to grant recognition or enforcement. This condition contains several different aspects, to be analyzed in the following lines:
Notification of the defendant
The document instituting the proceedings has to be duly served to the defendant, allowing him reasonable time to arrange for his defense. Of course a foreign court will apply its own law of procedure when serving such documents, but once these judgments are being brought before a Dutch court for recognition or enforcement the later has to be satisfied that the notification has been in line with Dutch principles of procedural law83 .
This requirement is even more important in judgments rendered by default. In this last case the defendant will bear the burden of proof to show that he was not duly notified of the proceedings instituted against him84. However, in case the defendant is duly notified of the default judgment rendered against him and he decides not to lodge an appeal, than the Dutch court will not oppose recognition of enforcement of such a judgment85.
It should be noticed that in their assessment of the service of process abroad Dutch courts often look at the language of international treaties and conventions to which the Netherlands is a contracting party. This is the case for instance with article 20 and 27 of the Brussels Convention (articles 26 or 34 of the Brussels I Regulation)86, article 19 of the EC Regulation87 on service abroad of judicial and extrajudicial documents and article 15 of the Hague Convention of 15 November 196588.
For instance, in case of default judgments rendered against a foreign defendant, Dutch courts will turn to article 15 of the 1965 Hague Convention in order to decide whether the conditions lied down there have been abided by:
“Where a writ of summons or an equivalent document had to be transmitted abroad for the purpose of service, under the provisions of the present Convention, and the defendant has not appeared, judgment shall not be given until it is established that –
a) the document was served by a method prescribed by the internal law of the State addressed for the service of documents in domestic actions upon persons who are within its territory, or
b) the document was actually delivered to the defendant or to his residence by another method provided for by this Convention, and that in either of these cases the service or the delivery was effected in sufficient time to enable the defendant to defend.
Each Contracting State shall be free to declare that the judge, notwithstanding the provisions of the first paragraph of this Article, may give judgment even if no certificate of service or delivery has been received, if all the following conditions are fulfilled-
a) the document was transmitted by one of the methods provided for in this Convention,
b) a period of time of not less than six months, considered adequate by the judge in the particular case, has elapsed since the date of the transmission of the document,
c) no certificate of any kind has been received, even though every reasonable effort has been made to obtain it through the competent authorities of the State addressed.
Notwithstanding the provisions of the preceding paragraphs the judge may order, in case of urgency, any provisional or protective measures.”
In case the Dutch court will be satisfied that those standards have been respected when the default foreign judgment has been rendered than it will go ahead with the granting of recognition or execution for that foreign judgment89. Of course the assessment of such terms as “sufficient time” is left for the discretion of the Dutch judge to decide. From the case-law at our disposal it seem that such a term of a few weeks90 might be sufficient in order to allow the defendant to arrange for his defense, whereas two days are not sufficient for this purpose91 . If the document instituting the proceedings has been served to a defendant located in the country where the court has been seized, that the standard to be applied is that according to which the defendant has had sufficient time to be informed of the proceedings instituted against him. That means that the notification does not necessarily have to be transmitted solely in the manners prescribed by the law of the court of origin. A registered letter with proof of reception might be also sufficient for this purpose92.
Parties in the foreign proceedings should have had the possibility to state their case, in other words to be heard by an impartial judge93. Infringement upon this requirement will trigger the refusal to grant recognition or enforcement of such a foreign judgment.
For instance, the District Court of Utrecht94 considered that a late notification of the place where the case will be tried amounted to a denial of the right to be heard and, as a consequence, triggers the non-recognition of that judgment. Moreover, the court of appeal in The Hague95 refused to grant recognition to an Indonesian judgment in which it appeared that the lawyer for one party has been subjected to threats. It seems to me, therefore, that the right to be heard includes the right to representation by a counselor. Indeed, a judgment from the court of appeal in Amsterdam96 confirms the aforementioned position; A foreign default judgment was denied recognition even though the defendant has been properly notified, only because he was not in the position to obtain legal assistance.
Yet an additional aspect of the due process is the reasoning of the foreign decision. The case law here is not entirely clear, having foreign judgments that lack reasoning both granted and refused recognition. For instance a Norwegian maintenance judgment97 that lacked reasoning has been nonetheless recognized, whereas an Indonesian judgment98 on child recognition has been refused such recognition.
Likewise, in granting exequator for an American judgment, the court in Rotterdam99 looked specifically at its reasoning and whether it was comprehensible. I would therefore conclude that the reasoning of the foreign judgment is important for the Dutch courts in the process of reviewing a foreign judgment. However, in some cases, as in the Norwegian maintenance judgment mentioned above, the lack of reasoning might be overlooked due to the fact that the judge will tend to analyze the whole picture, that is to say the fulfillment of the other requirements for recognition or enforcement as well.
The Dutch procedural law recognizes the need for control by means of appeal100. As a consequence, the Dutch legislator gave effect to the principle of two full instances in the Code of Civil Procedure101. Since article 6 of the ECPHRFF does not require the existence of an appeal possibility in order to have a fair trail, Verschuur102 is of opinion that this should also be the standard for Dutch due process in the process of assessment of foreign judgments. I would tend to disagree with him, not only because the Hoge Raad considers this principle as core in the Dutch legal system, but also because article 6 lays down only minimum standards for a fair trail. Member States may always grant more procedural rights, though never lesser protection than the one inferred from article 6.
In the Dutch legal system cassation is also available for all the parties involved in a trail, as a matter of legal principle103. This is not an appeal as such, but rather a control on how the law has been applied to the facts of the case (there may be no further debate on the facts of the case) or on whether procedural requirements have been abided by before the lower courts. The question here is whether this cassation requirement will apply to foreign judgments as well? I would tend to answer this question in negative; Not all legal systems have this construction, with an appeal instance and a final cassation court. For instance in the United States the access to the Supreme Court, the equivalent to Hoge Raad, especially from state courts is rather restricted; Indeed, through the writ of certiorari procedure104, the court selects the cases it hears. This does not mean that those judgments which the court refused to hear will be unfair. In fact, through the availability of appeal and cassation ways the Dutch courts realize the fundamental principle of control, unity and development. This principle will not suffer any violation if the foreign judgment has not been subjected to cassation in its country of origin. One sole level of appeal would be sufficient to both realize the rights of the parties involved and to make sure that Dutch due process rules are not being infringed upon.
4. 4 Finality
A number of Dutch authors105 consider that a fourth condition should be added to the catalogue of three requirements as described above, namely that the foreign judgments should be final and conclusive (no longer appealable), or in Dutch “kracht van gewijsde“. This would mean, in other words, that if a foreign judgments will comply with the three conditions stated above, and yet will still be appealable at the time the matter of recognition or enforcement is being considered by the Dutch court, than the foreign judgments will be denied any effects in the Netherlands.
Such a solution may, in my view, not be upheld. I would therefore tend to agree to Verheul106 and consider the finality not as an additional condition, but rather as an indication of the time when a foreign judgment that complies with the three-condition test will produce its effects in the Netherlands. If recognition or enforcement will be granted before the expiration of appeal times in the country of origin than there is always the risk that the original judgment will be overruled by a higher court in the country of origin, a fact that will make the initial proceedings opened in this country superfluous.
It should be noted in this context that a judgment will have res judicata effects as soon as it becomes final and conclusive in the state of origin. If, however, a foreign judgment which may still be appealed will be brought before a Dutch court for recognition or enforcement, than it would be rather important, in my view, especially in case an exequator is requested that the foreign judgment will be enforceable in the country of origin. In other words, an executorial title will have to be attached to the foreign judgment in order to become feasible for execution. In the framework of the extension of effects theory, as upheld for instance by the drafters of the Brussels Convention107 , foreign judgments may have only the effects they posses in the legal systems in which they are issued. In other words, in case a judgment is not enforceable in country x, where it has been rendered, it may not receive an exequator in country y either108.
As a consequence, I would consider that in case a foreign judgment that does posses res judicata effects in the country of origin, yet may still be appealed, is being brought before a Dutch court for recognition or execution the most viable solution is for the Dutch judge to stay proceedings until such time as the foreign judgment becomes final and conclusive. This is the solution upheld by the Brussels Convention (art. 30 for recognition and 38 for execution, art. 37 and 46 respectively in the Brussels I Regulation) which in the framework of the strive towards uniformity of law, especially within the European Union, produces certain reflexive effects on the Jus Commune of the Member States109. Furthermore, this stay of proceedings solution is being backed by some authors110 .
Likewise, the Dutch judiciary seems to confirm, at least through some courts, this solution111. Nevertheless, it should be noticed that the court of the Hague, which in 1986 did decide to stay proceedings until such time as the German divorce judgment became final and irrevocable, refused to act in the same manner ten years earlier, when called upon to recognize a Swiss divorce judgment. The fact that in between its decision and the appeal settled by the Court of Appeal in The Hague112 the Swiss judgment did become final and irrevocable only complicated the whole situation and shows how important would have been for the lower court in the Hague to stay proceedings. As a consequence, in face of an already existing Swiss judgment rendered earlier between the same parties and on the same cause of action, the Court of Appeal was of the opinion that the lower court’s divorce judgment should be declared void.
Judging by its legal provisions, namely article 431 Rv, the conclusion would be that the Dutch system for recognition or enforcement of foreign judgments is extremely rigid, in fact denying almost any effects to such judicial decisions. However, through a remarkable development in case law and doctrine, the system, as it currently stands, is far from being rigid.
Firstly, as observed above, the Dutch court construed the restrictive provision of article 431 Rv as prohibiting only execution of foreign judgments, not their recognition. This distinction limits greatly the scope of application of that provision, leaving room for recognition of a wide range of judgments which are feasible only for recognition and are not in need for execution. Included here are constitutive, declaratory or dismissal judgments. The recognition may be express, occurring through separate court proceedings dealing with that matter, or implicit, that is to say it may be deduced from other acts or deeds of the Dutch judiciary. However, in both cases the foreign judgment will keep its autonomous character and will be recognized as such. As Kosters-Dubbink113 rightly says, just as the fact that foreign laws applied by courts in the Netherlands does not turn those laws into Dutch laws, so the recognition of a foreign judgment does not turn that judicial decision into a Dutch one.
Secondly, condemnatory judgments, that is to say judgments awarding financial damages or other type of material remedies, may also be recognized, but this is only half of the story. In order to become effective, these judgments need be granted the coercive authority of the state in which execution is sought, in other words they are in need of an exequator. Article 431 Rv does stand in the way of granting such exequator. Nevertheless, through yet an additional remarkable development, the court knew to interpret this provision as not prohibiting the opening of new proceedings that may result in a Dutch judgment which in fact will incorporate the foreign judicial decision. In this case the foreign judgment does lose some of its autonomy, yet the outcome would be the same as in the recognition cases as described in the previous paragraph.
A foreign judgment need comply with three core conditions in order to be feasible for either recognition or execution:
- Proper jurisdiction assumed in the foreign proceedings – The standard used here is the one of an internationally acceptable forum, of course a standard that does not imply that all the grounds on which a Dutch court assumes jurisdiction in similar cases will also be acceptable when the foreign court bases its jurisdiction on the same grounds (I.e. forum actoris).
- Non-infringement of Dutch public policy – This requirement includes a two-level test encompassing on one hand non-violation of core Dutch legal principles and, on the other, the impact such recognition or enforcement of a foreign judgment will have on the Dutch legal system.
- Respect for due-process standards, such as service of process, fair hearing, reasoning of the judgments and the existing of appeal possibilities – Essentially includes protection for basic procedural safeguards found at the core of the Dutch legal system. As stated above, this condition may very well be introduced under the heading of public policy.
- Finally, the foreign judgment need be final and irrevocable in ordinary appeal procedures lodged in the country of origin, in itself not a condition but rather a standard showing the point in time when recognition or enforcement takes effect in the Netherlands.
All in all, one may notice that the requirements posed by the current Dutch systems for recognition or enforcement of foreign judgments, as inferred from case-law and doctrinaire works, would point out to a rather flexible system. Despite the legal provision, indeed giving the Netherlands the appearance of a closed system, the interpretation rendered by the courts to these provision led me to believe that the system, as it stands right now, is fairly open towards foreign judgments complying with these standards.
How else may we interpret the fact that, unlike the French legal system, the standard used by Dutch court when assessing the jurisdiction of the court of origin is not their own law, but rather internationally accepted forums. Likewise, the public policy requirement seems to receive a rather narrow interpretation, including only core principles of the Dutch legal system. The due process rules, in spite of being dealt with at times separately, appear to belong to those core principles of law.
Nevertheless, the current system seems to posses a serious drawback, that almost outweighs its benefits; Since it is judge-made law, and let us not forget that the Netherlands has a continental legal system, it is too flexible, leaving space for uncertainty and at times lack of clarity114. Indeed, I would consider that these points were rather obvious in this chapter.
This is the main reason why the Netherlands is seeking to adopt new legal provisions regulation the recognition or enforcement of foreign judgments from states with which no treaty applies115.
1See Law of 7th May 1986, Staatsblad (the Dutch Official Law Gazette – hereinafter S.) 295.
2Translation by the author.
3See Andreas Lowenfeld, International Litigation and the Quest for Reasonableness Essays in Private International Law (1996), Clarendon Press Oxford, at p. 109.
4See J.R. Voute, Bijdrage tot het vraagstuk der buitenlandsche vonnissen: aanteekening op art. 431 Wetb. Van Burg. Regtsv. (1865) Gebroeders Giunta d’Albani The Hague, at p. 2, J. Fresemann Vietor, De kracht van buitenlandsche vonnissen (1865), dissertation Groningen.
5Ibid., at p. 2.
6See HR 31 January 1902, W 7177.
7Translation by the author.
8See L. Strikwerda, Inleiding tot het Nederlandse Intrenational Privaatrecht (2000), 6th edition, Kluwer Deventer, at p. 257.
9See Law of 7 October 1964, S. 381, entered into force on 11 of November 1964.
10See Law of 7th May 1986, S. 295.
11See article 40 of the Statute of the Kingdom, entered into force on 29 December 1954.
12See R.Ch. Verschuur, Vrij verkeer van vonnissen (1995), Kluwer Deventer, at p. 35.
13See article 7, par. 2 of the Consular Law, as cited in note 12, supra, at p. 36.
14See note 4, supra, at p. 29, note 12, supra, at p. 39, J. Kosters and C.W. Dubbing Algemeen deel van het Nederlandse Internationaal Privaatrecht (1962), De Erven F. Bohn N.V. Haarlem, at p. 767-768 and I. Henri Hijmans, Welke kracht behoort te worden toegekend aan beslissingen in burgerlijke en handelszaken van den buitenlandschen recher (scheidslieden daaronder niet begrepen)? Preadvies Nederlandse Juristen Vereniging (Netherlands Lawyers Association – hereinafter NJV) 1929, discussion in Handelingen, at p. 14-104.
15See Hof (Court of Appeal) Amsterdam 11 November 1927, Weekblad van het Recht (hereinafter W.) 11752, Hof The Hague, 21 December 1936, Nederlandse Jurisprudentie (hereinafter NJ) 1937, 350, Rb. (District Court) Amsterdam 31 December 1931, NJ 1933 501 and Kantong. (Subdistrict Court) Breda 9 April 1930, NJ 1931, 70.
16See note 12, supra, at p. 34.
17See the 1978 version of the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters, done at Brussels on 27 September 1968, as published in Official Journal L 304 , 30/10/1978 p. 0001 – 0073, available online at http://europa.eu.int/eurlex/en/lif/dat/1978/en_478A1009_01.html
18See note 12, supra, at p. 41-42.
19See for instance S.P. Lipman, Aanmerking op het onderwerp van wetboek van burgerrlijk rechtspleging, Leyden, 1827/8, at p. 187.
20See HR (the Hoge Raad – Netherlands Supreme Court) 12 April 1861, W. 2269.
21See note 4, supra, at p. 2.
22See HR 31 January 1902, W. 7717.
23See HR 31 January 1902, W. 7177.
24See HR 24 November 1916, NJ 1916, at p. 5.
25See J.P. Verheul Erkenning en tenuitvoerlegging van vreemde vonnissen (1989), Maklu Uitgevers Apeldoorn, Kosters-Dubbink (1962), cited at note 15, supra, Strikwerda (2001), 6th edition, cited at note 9, supra, D.Kokkini-Iatridou and J.P. Verheul Les effets de jugements etrangers aux Pays-Bas, in Netherlands reports to the VIIIth International congress of comparative law, Deventer 1970, Verschuur (1995), as cited at note 13, supra.
26See Kosters-Dubbink (1962), as cited at note 14, supra, or D.Kokkini-Iatridou, J.P. Verheul Netherlands Report 1970, as cited at note 25, supra.
27See Verheul (1989), as cited at note 25, supra, or Verschuur (1995), as cited at note 12, supra.
28See note 17, supra.
29See Verheul (1989), as cited at note 25, supra p. 28.
30On this issue see J. Kosters Bijdrage tot internationale regeling der rechtsmacht in burgerlijke en handelszaken (1914), De Erven F. Bohn Haarlem at p. 16-24.
31See for instance Rb. Amsterdam 28 January 1970 AK 5845, Rb. Rotterdam 29 September 1989 Schip en Schade (hereinafter S&S) 1992/30, Pres. Rb. Rotterdam (the presiding judge of the District Court) 9 May 1983 Nederalnds Internationaal Privaatrecht (hereinafter NIPR) 1984 no. 130, Rb. Zwolle 16 August 1995 NIPR 1996 no. 143, Hof The Hague 29 October 1996, NIPR 1997 no. 244, Pres. Rb. Utrecht 29 July 1997, NIPR 1997 no. 383.
32See Rb. Rotterdam 29 September 1989 S & S 1992/30.
33See Rb. Amsterdam 27 January 1972, NJ 1973 461, Hof The Hague, 20 June 1974, NJ 1975 510.
34See note 8, supra, at p. 196.
35See articles 2 of both documents; Council Regulation (EC) No. 44/2001, 22 December 2000, Official Journal L 012, 16.01.2001, p. 1, available online at: http://europa.eu.int/eur-lex/pri/en/oj/dat/2001/l_012/l_01220010116en00010023.pdf and the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters, done at Brussels on 27 September 1968, as published in Official Journal L 304 , 30/10/1978 p. 0001 – 0073, available online at http://europa.eu.int/eurlex/en/lif/dat/1978/en_478A1009_01.html
36See article 3 of the preliminary draft Convention on jurisdiction and foreign judgments in civil and commercial matters, available online at http://www.hcch.net/e/conventions/draft36e.html
37See for instance Verheul (1989), as cited in note 25, supra, at p. 32-33.
38See for instance Rb. Rotterdam 29 September 1989 S & S 1992/30, Hof Amsterdam 21 March 1996 NIPR 1997 no. 362, Rb. Rotterdam 12 December 1996 NIPR 1997 no. 262, Pres. Rb. Utrecht 29 July 1997, NIPR 1997 no. 383.
39This article is now numbered 23 in the new EC Regulation.
40See HR 17 December 1993, NJ 1994 348 and HR 25 April 1997, NJ 1998 665.
41See HR 25 April 1997, NJ 1998 665.
42See HR, 14 November 1924, NJ 1925, 91.
43See Rb. The Hague, 17 April 1974, NJ 1974 414.
44See Verheul (1989), as cited in note 25, supra at p. 34 and article 16 of the draft Hague Jurisdiction and Execution Convention, as cited supra at note 36.
45See Rb. Rotterdam 20 December 1976, NJ 1978 282.
< sup>46See EC Court of Justice case 21/76 Handelskwekerij G.J. Bier BV of Nieuwekerk a/d Ijssel and Stichting Reinwater of Amsterdam v. Mines de potasse d’Alsace SA of Mulhouse,  E.C.R. 1735, NJ 1977 494
47See article 5(1) Brussels Convention or article 6 of The Hague draft Convention.
48See Rb. Rotterdam 29 September 1989 S & S 1992/30.
49See Verheul (1989), as cite in note 25, supra at p. 35-36, L.Th.L.G. Pellis Forum Arresti aspecten van rechtsmachtscheppend (vreemdelingen-)beslag in Europa (1993), W.E.J. Tjeenk Willink bv., Zwolle.
50See Verheul (1989), as cited in note 25, supra at p. 36.
51Ibid. at p. 35.
52See Strikwerda (2001), 6th edition, as cited at note 8 supra, p. 54, Hof Amsterdam 22 April 1999, NIPR 1999 no. 233, Verschuur (1995), as cited at note 12, p. 52-53.
53See J. Kosters, Het internationaal burgerlijk recht in Nederland, De Erven F. Bohn Haarlem 1917, at p. 151.
54See Rb. Amsterdam 22 December 1911, W. 9366.
55See the conclusion of the Public Prosecutor (O.M.) in the case cited supra.
56See Hof Amsterdam 27 January 1913, W. 9438.
57See note 12, supra, at p. 53.
58See for instance HR 16 December 1983, NJ 1985 311.
59See note 12, supra, at p. 53.
60See MvT Tweede Kamer (Explanatory Memorandum, Netherlands Second Parliament Chamber), Bill 18 464.
61On this issue se Kosters (1917), as cited at note 53, supra, p. 153-154, Strikwerda (2001), 6th edition, as cited at note 8, supra, p. 54-55 and Verschuur (1995), as cited at note 12, supra, p. 52-53.
62See HR 13 March 1936, NJ 1936 280, HR 13 March 1936, NJ 1936 281, HR 11 February 1938, NJ 1938 787, HR 28 April 1939, NJ 1939 895.
63See Pres. Rb. The Hague 17 September 1982, KG 167.
64On the refusal to recognize an American judgment applying the Reagan’s Administration Export Regulations see Pres. Rb. The Hague 17 September 1982, KG 167.
65See Strikwerda (2001), 6th edition, as cited at note 8, supra, p. 55.
66See also HR 13 March 1936, NJ 1936 280 and HR 28 April 1939, NJ 1939 895.
67See D. Kokkini-Iatridou and J.P. Verheul, Netherlands Reports (1970), as cited at note 25, supra, p. 143, Verheul (1989), as cited at note 25, supra, p. 43-44 and Strikwerda (2001), 6th edition, as cited at note 8, supra, p. 264-265.
68See Cour de Cassation (the Highest Court of Appeal in France) – 1st Civil Chamber, 4 October 1967 Bachir v. dame Bachir, Clunet 1969, 102, with notes by Goldman.
69See D. Kokkini-Iatridou and J.P. Verheul, Netherlands Reports (1970), as cited at note 25, supra, p. 143, Verschuur (1995), as cited at note 12, supra, p. 53.
70See HR 31 January 1919, NJ 1919 257 or Rb. Rotterdam 17 February 1995, NIPR 1996 no. 134.
71See for instance the French situation and article 27(3) of the Brussels Convention, as cited at note 17, supra.
72See HR 26 January 1979, NJ 1979 399.
73See A.V.M. Struycken, Naar eenheid van rechtsbedeling in Europa, Kluwer 1971, at p. 17-18.
74For a similar opinion see also D. Kokkini-Iatridou and J.P. Verheul, Netherlands Reports (1970), as cited at note 25, supra, p. 143, Verschuur (1995), as cited at note 12, supra, p. 55 or Verheul (1989), as cited at note 25, supra, p. 45.
75See Verheul (1989), as cited at note 25, supra, p. 58.
76Ibid., at p. 45.
77For the refusal to recognize a divorce judgment rendered in Venezuela by fraud see Rb. Amsterdam 17 October 1967, NJ 1968 255.
78See Verheul (1989), as cited at note 25, supra, p. 48.
79See HR 14 November 1924, NJ 1925 91, HR 24 July 1939, NJ 1940 218.
80See Hof Amsterdam, 17 October 1979, NJ 1980, 387.
81See Verschuur (1995), as cited at note 12, supra, p. 56.
82See Strikwerda (2001), 6th edition, as cited at note 8, supra, p. 264 and Verschuur (1995), as cited at note 12, supra, p. 54.
83See Rb. Zwolle 16 August 1995, NIPR 1996 no. 143, Hof ‘s-Hertogenbosch 4 September 1996, NIPR 1997 no. 190.
84See Verheul (1989), as cited at note 25, supra, p. 50-51.
85See for instance Hof Amsterdam, 17 November 1967, NJ 1968 270.
86See note 35, supra.
87See Council Regulation (EC) No 1348/2000 of 29 May 2000 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters, Official Journal L 160, 30/06/2000 p. 0037-0043, available online at http://europa.eu.int/eur-lex/en/lif/dat/2000/en_300R1348.html
88See Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, Trb. (Tractatenblad – Netherlands Bulletin of Treaties) 1969 210, available online at http://www.hcch.net/e/conventions/text14e.html
89See Hof The Hague 18 June 1986, NIPR 1987 no. 168.
90See Hof Den Bosch 4 March 1982, Weekblad voor Privaatrecht, Notariaat en Registratie ((hereinafter WPNR) 1986 685.
91See Rb. Utrecht 8 December 1976, NJ 1978 28.
92See Rb. Breda 21 June 1977, AK 10960, HR 25 September 1992, NJ 1992 748.
93See Kosters-Dubbink (1962), as cited at note 14, supra, p. 830-831, Strikwerda (2001), 6th edition, as cited at note 8, supra, p. 264, Verheul (1989), as cited at note 25, supra, p. 52.
94See Rb. Utrecht 8 December 1976, NJ 1978 28.
95See Hof The Hague 20 June 1974, NJ 1975 510.
96See Hof Amsterdam 20 August 1987, NIPR 1988 no. 108.
97See Rb. The Hague 9 November 1983, NJ 1983 165.
98See Hof The Hague 20 June 1974, NJ 1975 510.
99See Rb. Rotterdam 29 September 1989, S & S 1992/30.
100See H.J. Snijders et al. Access to civil procedure abroad (1996), Kluwer Law International the Hagu
e, p. 249.
101See articles 332, 345 and 429n Rv., as cited in A.W. Jongbloed and C.H. van Rhee, Burgerlijk Procesrecht 2001/2002, Ars Aequi Libri Nijmegen 2001.
102See Verschuur (1995), as cited at note 12, supra, p. 54-55.
103See art. 118(2) of the Dutch Constitution, available online at http://www.uni-uerzburg.de/law/nl00000_.html and articles 398 et seq. and 426 et seq. Rv, as cited at note 101, supra.
104See Frank S. Towner, JR., in Dennis Campbell and Christian Campbell, International Civil Procedures (1995), Lloyds of London Press London, at p. 704.
105See M.V. Polak, Grenzeloos procederen (1993), Ars Aequi Libri Nijmegen, at p. 16, Verschuur (1995), as cited at note 12, supra, p. 50.
106See Verheul (1989), as cited at note 25, supra, p. 53.
107See note 17, supra.
108This solution has been upheld in several conventions; Among other see article 31 of the Brussels Convention, the Benelux treaty, the execution Conventions between Belgium and the Netherlands, Germany and Belgium, Italy and Belgium, Germany and the Netherlands and, finally, France and Belgium.
109On this issue see Verschuur (1995), as cited at note 12, supra, p. 56-57, Rb. Arnhem 24 August 1984, NJ 1986 86.
110See for example Verheul (1989), as cited at note 25, supra, p. 55.
111See Rb. Maastricht 12 November 1936, NJ 1938 235, Rb. The Hague 9 June 1986, NIPR 1986 no. 416-stay of proceedings for four months until the German divorce judgment became res judicata.
112See Rb. The Hague 17 November 1976 and Hof The Hague 2 November 1978, AK 11365.
113See Kosters-Dubbink (1962), as cited at note 14, supra, p. 832.
114See Th.M. de Boer and M.V. Polak, Naar een gecodificeerd internationaal privaatrecht, Mededelingen van de Nederlands Vereniging voor Internationaal Recht, Deventer, 1990, at p. 27, 47 and 140.
115See D. Kokkini-Iatridou, Internationaal Privaatrecht, in Ars Aequi Katern, Kwartaalbijlage, Number 45, p. 2065-2067. D. Kokkini-Iatridou and K. Boele-Woelki, De regeling van de “Internationale rechtsmacht“, WPNR 6121, p. 55, L. Strikwerda, Het “rode boek” van het Internationaal privaatrecht, Nederlands Juristenblad (NJB) 1992, at p. 1572, Verschuur (1995), as cited at note 12, supra, p. 57-61.