Foreign court judgement
A foreign judgment is enforceable in the Netherlands only pursuant to a regulation, treaty or law. Between the Netherlands and the United States, there is neither a treaty nor a regulation or law governing this. Article 431 of the Dutch Code of Civil Procedure (Rv) provides that in such a case a judgement of a foreign court cannot be enforced within the Netherlands. The only way for the claim set forth in that enforceable title to be executed in the Netherlands is for the case to be heard and disposed of again by the Dutch court (Article 431(2) Rv). The judgement of the Dutch court constitutes the enforcement order.
The opposing party must tolerate a new hearing. The fact that the case is heard again does not mean that the case is also subjected to a new, substantive examination. Article 431 Rv does not prevent the Dutch court from considering in the first instance, if requested, only the recognition of the foreign enforceable title in the Netherlands. Indeed, the article deals only with the enforcement of foreign enforceable titles, but says nothing about their recognition. Under the second paragraph of the article, the Dutch court may order the parties to do the same as what the parties were ordered to do in the foreign judgment, and thereby recognize the foreign judgment, if four requirements are met:
the foreign court's jurisdiction is generally acceptable by international standards;
the foreign procedure was proper and with adequate safeguards;
recognition is not contrary to Dutch public order; and
the foreign judgment is not incompatible with any other Dutch or foreign judgment between the same parties on the same matter which is susceptible to recognition in the Netherlands.
This follows from the ruling of the Supreme Court on September 26, 2014. If the foreign judgement meets these requirements then it is sufficient for the Dutch court to state that the judgement meets the requirements and an order can be sought for what the other party is obliged to do according to the foreign judgement.
If the recognition of the foreign enforceable title is not admissible, it is always possible that (in the alternative, it is claimed that) the proceedings in the Netherlands should be redone in substance.
In a case from the Court of First Instance of Aruba dated January 19, 2021, the defendant complained that she was not properly summoned in the court proceedings. This would not have satisfied the right to be heard. This contention was silly since she did present her views in the proceedings and had filed a counterclaim herself. The judge had also included her arguments in his consideration. The Dutch judge therefore recognized the judgement.
Judicial default judgement
A judgement rendered in default does not enjoy an exceptional position in the law in so many words. It remains the case that the judge in the Netherlands can proceed to a new substantive hearing. In that case, the party, who was convicted in default during the foreign hearing of the case, can still come forward and participate in the trial in the new substantive hearing. It is up to the judge to decide whether or not to proceed to a new substantive hearing of the case. This is not mandatory.
It may be the case that the proceedings that have been instituted are only an order for what the opposing party was ordered to do in the foreign judgement. If it should be the case that the opposing party did not receive a summons, for example, and a judgment was still rendered, this may indicate that the foreign proceedings were not properly and adequately safeguarded. If the court concludes that the 4 criteria were not met, the Dutch court will not recognize the foreign court's decision.
In one case, the 2nd and 3rd criteria played a role. The defendant was aware of the hearing date but had informed the U.S. judge in an email that he could not make it on that date. However, he did not request that the hearing be rescheduled. The defendant was subsequently convicted in default for lack of defense. In recognizing the judgement in the Netherlands, the defendant argued - in violation of Article 6 ECHR - that he did not have access to the court because he had no money to pay for a lawyer while there was mandatory legal representation. However, the Dutch court ruled that there was no mandatory legal representation at all and that the defendant had been assisted by a lawyer in the pre-trail phase. No further reason was given as to why he now suddenly could not afford a lawyer. Also, the defendant had only indicated that he would not be in the country on the hearing date. He had not raised the fact that he could not pay a lawyer. The Dutch court therefore understandably did not go along with the defendant's contentions.
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