The concept
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 judgmentIn 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 loiForeign 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 result may not be recognized or enforced.
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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. Fair hearing 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.Reasoning 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. Appeal possibilities 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.
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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.
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5. Conclusive remarks
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.
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 judgmentIn 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 loiForeign 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 result may not be recognized or enforced.
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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. Fair hearing 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.Reasoning 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. Appeal possibilities 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.
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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.
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5. Conclusive remarks
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.
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