As stated above, when assessing the effect a foreign judgment will have in the Dutch legal system, the court will look at a number of conditions which need to be fulfilled. Although initially these requirements were used in order to decide whether recognition solely was feasible, later on the fulfillment of these conditions, as described above, was sufficient in order to extend a leave for exequator in a new Dutch procedure opened in accordance to article 431 Rv. Whereas the literature25 seems to agree to a set of minimum three requirements, jurisdiction of the court of origin, respect for due process rules and non-infringement of Dutch public policy, some authors would add the condition that the foreign judgment is final and conclusive (no longer appealable)26 or even a fifth condition covering the possible conflicts with an already existing judgment27.
In my opinion the last condition might be very well included within the scope of the non-infringement of Dutch public policy. As a consequence, the following lines will contain an analysis of the first three conditions as mentioned above, namely acceptable jurisdiction of the court of origin, non-infringement of Dutch public policy and respect for due process rules. Finally, the finality requirement will be analyzed not as a separate condition, but rather as a time indication.
4.1 The jurisdiction of the court of origin
Why this condition?
Even though several double conventions ceased to make reference to this requirement when assessing the feasibility of recognition or enforcement of foreign judgments, a famous example of such a treaty being the Brussels Convention28, this condition is still being upheld in the Jus Commune as a reminiscent of the sovereignty doctrine29. Indeed, in case for instance a certain legal system possesses exclusive jurisdiction rationae materiae, in accordance with the lex rei sitae, no court in that legal system would recognize or enforce foreign judgments on the statute of the real estate property located within the territorial boundaries of the state addressed. The refusal to recognize that judgment would most probably be based on the lack of jurisdiction of the court of origin, in conformity with this criterion.
Furthermore, having foreign judgments rendered by courts which lacked jurisdiction might encourage parties to engage in forum shopping, thus having their case tried before a court whose legal system allows for the most positive results, and subsequently having that judgment enforced against the debtor or his property situated in the state addressed.
This requirement is well connected to the other conditions for recognition or enforcement; For instance, it may well be that some jurisdictional rules are matters of public policy, their infringement amounting to a violation of that condition as well. Likewise, in case the court of origin assumed jurisdiction which may amount to an infringement of the rights of the defendant, for instance based on the forum actoris rule, then both the jurisdiction criterion and the one covering respect for due process rules are being infringed upon.
The jurisdiction of the court of origin may be assessed in accordance with several standards30: Those upheld by the legal systems of the court of origin, those enacted in the addressed state or in accordance with an independent standard, as upheld in international instruments. The Dutch judiciary31 has chosen to apply the test while looking at internationally accepted criteria for establishing jurisdiction, thus the third standard above described. For instance the court in Rotterdam32, when asked to grant an exequator for an American judgment, looked at the fact that the American court in Jacksonville, Florida established jurisdiction based on an internationally accepted ground, namely forum solutionis contractus.
Internationally accepted forums before the Dutch courts
1. Forum rei
This is one of the most accepted international grounds for establishing jurisdiction. It follows essentially the maxim “actor sequitur forum rei”, that is to say that the law lean in favor of the defendant. As a result, one of the most “natural” forums in international law is considered to be the court of defendant’s domicile or habitual residence, or in case of multiple defendants where one of them is domiciled33. The domicile of the defendant will be established in accordance with the law of the court first addressed. On this matter, one may not reasonably expect the court of origin to apply the procedural law of the country where recognition or enforcement might be sought at a letter date. This question is particularly relevant in case the defendant is a company or a legal person since different legal systems may apply different standards in order to establish such domicile. Accordingly, if for instance the Netherlands applies the standard of the statutory seat, Germany or France would look rather at the place where the central administration is located in order to establish domicile34. Like stated above, a court in the Netherlands may not impose its own standards of establishing domicile, in this case the statutory seat rule, on a foreign court. What is important is that the defendant has been summoned before his or her natural judge, at the place of his or her domicile or habitual residence.
Worth noticing in this context is that this ground for establishing jurisdiction represents the main rule upheld by the Brussels Convention and the EC Regulation that was enacted in the year 2000.35 Likewise, this forum is the main jurisdictional rule as upheld by the to-be Hague Jurisdiction and Execution Convention36.
2. Jurisdiction of the forum where a branch, agency or other establishment is located
Although on this issue there is no extensive case-law available, this ground has been upheld in a number of international legal instruments, significant among them being the Brussels Convention in article 5(5) or the new Hague Convention in article 9. Worth being noticed in this context that the dispute has to result from the operation of that branch, agency or other establishment in order to make room for the jurisdiction of that forum.
3. The forum chosen by the parties
This head of jurisdiction is generally considered an internationally accepted forum not only in the literature37 or in international conventions, but also in the Dutch case law38.
The Brussels Convention contains such a rule in article 1739, whereas the new Hague Convention makes reference of the forum choice in article 4. Moreover, as stated above in the chapter dealing with international instruments, both documents contain provisions as to the conditions that need to be fulfilled by such a court agreement in order to be valid.
The Hoge Raad has dealt at least twice40 recently with the question of the validity of jurisdiction assumed on such an agreement between the two parties. Not only is such a jurisdictional ground acceptable, but also it precludes a Dutch court from assuming jurisdiction in that case, even though had it not been for the parties’ agreement the jurisdiction would have been established41. Nevertheless, in case by virtue of a legal statute or a treaty to which the Netherlands is a contracting party a Dutch court would posses exclusive jurisdiction, than the agreement on choice of court concluded by the parties would lack validity.
4. Voluntary submission
Provided that a Dutch court does not posses exclusive jurisdiction over a certain dispute, the mere appearance of the defendant in the foreign proceedings, with the purpose of defending on the merits of the case and not solely to contest the jurisdiction of the court, would be considered as establishing the jurisdiction of the court of origin.42
The foreign plaintiff will be bound not only by the decision rendered in the principal matter under dispute, but also in the decision rendered on his or her counterclaim43 . As a consequence, introducing a counterclaim amounts to an acceptance of the jurisdiction of that court and thus to voluntary submission.
As was the case with the previously mentioned forums, this ground too is mentioned in the Brussels Convention in article 18, the EC Regulation that followed, in article 24, and in the draft Hague Convention in article 5.
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5. Forum connexitatis
Under the condition that it does not infringe upon the agreement of the parties as to the chosen court, or upon rules of exclusive jurisdiction44, the court seized with the principal matter will posses jurisdiction in counterclaims or third party proceedings too. The Brussels Convention and the recent EC Regulation accept this forum in article 6(2) and (3). The draft Hague Jurisdiction and Execution Convention mentions the forum connexitatis in article 15 (counterclaims) and 16 (third party proceedings).
Nevertheless, this ground of jurisdiction may not be abused in order to deny to the third party involved a trail before the judge who would be otherwise competent.45
6. Forum delicti
In case of torts or delicts, it is internationally acceptable that not only the courts of the place where the damaging act occurred would posses jurisdiction, but also those of the place where the injury arose. One may envisage that in particular in the framework of claims arising out of environmental torts the forum of the later court would become relevant. The draft Hague project of a Jurisdiction and Execution Convention contains this ground for establishing jurisdiction in its article 10. However, claims submitted at the place where the injury arose may relate exclusively to that injury and may not encompass injuries which arose in other places. The Brussels Convention refers to this forum in its article 5(3). Nevertheless, it was only in 1976, through the interpretation of the Court of Justice of the European Communities46, that the forum of the place where the injury occurred has been specifically added.
7. Forum rei sitae
The court of the place where an immovable property is situated will posses jurisdiction in matters related to rights in rem concerned with that particular property. In the Brussels Convention this ground of jurisdiction is extended to cover tenancies of such property. Moreover, both the Brussels Convention (art. 16, EC Regulation art. 22) and the draft Hague Convention (art. 12) enlist this ground as one of the few exclusive forums.
8. Forum solutionis contractus
In disputes arising out of contracts, the court of the place where the obligation in question has been performed or should have been performed. Unlike the opinion of Verheul, I consider this ground to be well established, not only in treaty law47 but also in Dutch case law48 .
9. Forum arresti
In case the dispute is related to the cargo or freight of a ship which has been arrested in order to secure that payment, the courts of the place where that ship has been arrested49 will posses jurisdiction.
10. The forum of the plaintiff economically weaker party
Despite some opinions to the contrary50, I consider this ground to be more and more acceptable at the international level. The approach to this matter in the new Brussels I Regulations reinforces this point of view; Indeed, if the original version of the Brussels Convention makes reference only to consumers and insurance policy holders (articles 12 and 15) the new Regulation adds a separate section dealing with employment contracts, according to which the employee, as the economically weaker party, may sue at the place where the work has been carried out (art.19). The draft Hague Convention contains such special provisions for consumer and employment contracts (articles 7 and 8). However, while this forum is well established, one may find border cases whereby the economically weaker party will be difficult to establish (I.e. large insurance policy holders).
11. The last domicile of the deceased
For disputes related to wills sand successions, the courts where the deceased has had his or her last domicile would posses jurisdiction51 .
This list of forums considered to be internationally accepted before the Dutch courts is not exhaustive. While it contains the bulk of possible forums in civil and commercial matters, one would have to take into account the flexibility of this list. Indeed, since this list makes direct reference to international legal instruments, it is quite clear that once new forums are accepted at that level, the Dutch court will most probably acknowledge these developments. The same may occur with forums that are no longer acceptable and thus would be considered to be unacceptable by Dutch courts.
As stated above, while this criterion seems to be fair due to its reference to international, neutral standards, it has the significant drawback of not providing sufficient legal certainty. In order to improve this situation, it seems to me that future legislative measures on this field will have to contain an addendum with a clear catalogue of forums considered by the Dutch legislator to be internationally acceptable.
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