On December 13, 2021, the Dutch government responded to parliamentary questions regarding the recognition and enforcement of post-Brexit British judgments in the Netherlands (the responses). While some Dutch practitioners, jurists and at least one court in particular have argued that parties can revert to the “old” Convention of 1967 on the Reciprocal Recognition and Enforcement of Judgments in Civil Matters between the United Kingdom and the Netherlands (the 1967 Convention), the Netherlands government takes the position that the 1967 Convention no longer applies. How then are post-Brexit British judgments recognized and enforced in the Netherlands?
UK withdrawal from the recast of the Brussels I Regulation and the 2007 Lugano Convention
In our previous Brexit Blog 12, we discussed that the recast of the Brussels I Regulation and the 2007 Lugano Convention are no longer applicable in the UK.
Despite the UK’s attempts to join the 2007 Lugano Convention, the European Commission prevented it from doing so, arguing that the convention is an ancillary measure for the EU’s economic relations with member countries of the European Free Trade Association. Fundamental freedoms and single market policies are not included in the UK-EU trade and cooperation agreement. The European Commission considers that the Multilateral Hague Choice of Court Convention of 2005 (the 2005 Hague Convention) and the 2019 Hague Conference Convention on the Recognition and Enforcement of Judgments (Congress of Judgments 2019) an appropriate framework for judicial cooperation with the United Kingdom in civil and commercial matters.
The Dutch government argued that in view of the intensive legal services and commercial relations between the UK and the EU (and the Netherlands in particular), the UK’s accession to the Lugano Convention of 2007 would provide businesses and citizens with legal certainty in cross-border disputes. . For now, however, the UK’s accession to the 2007 Lugano Convention seems unlikely. The Dutch government has indicated in its responses that it will endeavor to ensure that further discussions on the UK’s application for accession to the 2007 Lugano Convention can take place at a later time, taking into account all relevant considerations.
Recognition and enforcement of post-Brexit British judgments in the Netherlands
Lawyers, academics and a Dutch court (ECLI: NL: RBOVE: 2018: 4365) assumed that the 1967 Convention would govern the recognition and enforcement of post-Brexit British judgments in the Netherlands. The Dutch government has now made it clear that following the UK’s accession to the 1968 Brussels Convention, the 1967 Convention has been superseded and lost its relevance to the European part of the Kingdom of the Netherlands . To date, the 1967 Convention remains in force only for (i) the Isle of Man, Guernsey and Jersey and (ii) the Caribbean part of the Kingdom of the Netherlands.
- The Hague Convention of 2005: This Convention governs the recognition and enforcement of judgments rendered on the basis of a exclusive jurisdiction clause in favor of the courts of one of the Contracting States. The Netherlands (across the EU) and the UK are parties to this convention.
- The 2019 Judgments Convention: In the future, the 2019 Judgments Convention may become relevant. Currently, this Convention is only signed by Costa Rica, Israel, the Russian Federation, Ukraine and Uruguay. Supported by the Dutch government, the EU is preparing a ratification decision. Likewise, the United Kingdom is considering acceding to this Convention.
- Dutch private international law: for the moment, Dutch domestic law provides the legal framework for recognition and enforcement in the event that the 2005 Hague Convention does not apply. Reference is made to Article 431 of the Dutch Code of Civil Procedure (DCCP). In accordance with Art.431 DCC, the judgment creditor can resubmit the case to the competent Dutch court to obtain a Dutch judgment (binding and enforceable). The Dutch court may render a judgment in accordance with the British judgment without examination on the merits if all of the following conditions (the so-called Gazprom-criteria) are met: (a) the UK court must have assumed jurisdiction on internationally acceptable grounds; (b) the UK judgment must be the result of proceedings which meet generally accepted fair trial standards; (c) recognition of the British judgment must not be contrary to public policy; and (d) the UK judgment is consistent with an earlier decision of a court between the same parties in a dispute relating to the same subject matter and the same cause of action. If these criteria are met, a Dutch court will effectively integrate the UK judgment into a “new” Dutch judgment.
It remains to be seen what (international) rules govern the recognition and enforcement of British judgments in the Netherlands. The responses of the Dutch government provide some indications:
In other words, post-Brexit judgments obtained in the UK can still quite easily be recognized and enforced in the Netherlands under the 2005 Hague Convention (if applicable) and in any event on the basis of Article 431 DCCP, with the note that a “Dutch judgment (in Dutch court proceedings) must be obtained first if the latter route is followed.
Finally, the government declares in its responses that the Dutch State Commission on Private International Law should present its recommendations on a revision of Article 431 DCCP by spring 2022. The objective will be to introduce statutory regulations. fully-fledged for the recognition and enforcement of judgments from countries that do not have an enforcement treaty with the Netherlands.