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 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 rule
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 exception
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.
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 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 rule
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 exception
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.
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