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.
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.
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