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Copyright © International Chamber of Commerce (ICC). All rights reserved. ( Source of the document: ICC Digital Library )
This ICC Guide to National Rules of Procedure for Recognition and Enforcement of Foreign Awards under the New York Convention is the third, updated edition to mark the 60th anniversary of the New York Convention. Country Answers, which reflect the state of law at 1 October 2018, have been provided in response to a Questionnaire drawn up by a task force of the ICC Commission on Arbitration and ADR.
A. The Contracting State and the New York Convention
1. Name of Contracting State (also specify jurisdiction(s), if relevant)
The Netherlands.
2. Date of entry into force of the New York Convention
23 July 1964.
(Source: Decree of 14 Oct. 1963, No. 417.)
3. Has any reservation been made under Art. I(3) of the New York Convention regarding:
(a) reciprocity?
The Netherlands has made a reciprocity reservation under the New York Convention.
(b) commercial relationships?
The Netherlands has not made a reservation for commercial relationships.
4. In addition to arbitral awards made in the territory of another State, the New York Convention (Art. I(1)) also applies to arbitral awards not considered as domestic awards in the State where recognition and enforcement are sought. Are there any awards rendered in your country that are not considered as domestic awards such that the New York Convention and the answers to this Questionnaire are applicable to them?
No.
B. National sources of law
5. What specific sources of law are applicable to recognition and enforcement of foreign awards (e.g. statutes, regulations, codes, directives, other legal instruments)?
Unless otherwise indicated, the answers below apply to both the NYC Regime and the 1076 Regime.
On 1 Jan. 2015, a revised Arbitration Act entered into force (Stb. 2014/200) aimed at enhancing the competitiveness of the Netherlands as an arbitration-friendly jurisdiction by increasing efficiency and flexibility of the arbitral process. Pursuant to its Art. IV, the new Arbitration Act is applicable to all arbitrations pending on or after 1 Jan. 2015 and to cases brought before state courts (by issuing a summons or submitting an application) which relate to arbitral proceedings brought on or after 1 Jan. 2015.
The old Act still applies to arbitrations initiated before 1 Jan. 2015 and to cases brought before state courts (by issuing a summons or submitting an application) which relate to arbitral proceedings which are initiated before 1 Jan. 2015.
In case of a request for recognition and enforcement of a foreign arbitral award in an arbitration which was pending before the entry into force of the new Arbitration Act, the Court of Appeal of Amsterdam ruled that the examination of such request will be made under the Act applicable at the time of filing the request (i.e. pursuant to Arts. 1075 par. 2 and 1076 par. 6 of the DCCP, the Court of Appeal has jurisdiction in cases submitted after 1 Jan. 2015 instead of the Preliminary Relief Judge of the district court.
(Source: Court of Appeal 29 May 2018, ECLI:NLGHAMS:2018:1841 and ECLI:NLGHAMS:2018:1842; Court of Appeal 6 Nov. 2018, ECLI:NL:GHAMS:2018:4155, Dutch only.)
C. Limitation periods (time limits)
6.
(a) Is there a limitation period (time limit) applicable to the commencement of legal proceedings for recognition and enforcement of foreign awards?
There is a limitation period applicable to recognition and enforcement of foreign awards under Dutch law
(Source: Dutch Civil Code, Art. 3:324.)
Note: The Dutch Supreme Court held that the lapse of the limitation period to enforce an arbitral award under the law of the country where the foreign award was rendered does not prevent recognition and enforcement thereof in the Netherlands.
(Source: Supreme Court 17 April 2015, ECLI:NL:HR:2015:1077; Dutch only.)
(b) If yes, what is the applicable limitation period (time limit) and when does it start running?
The limitation period applicable to legal proceedings for the enforcement of judgments and arbitral awards is 20 years from the day following that of the decision or, if conditions have been set for its enforcement (the fulfilment of which does not depend on the will of the person who obtained the decision), from the day following that on which such conditions were fulfilled.
D. National courts and court proceedings
7. What authority or court has jurisdiction over recognition and enforcement of foreign awards?
Under the old Act, the Preliminary Relief Judge of the district court (Voorzieningenrechter) at (i) the place of residence of the respondent, (ii) the place where enforcement is sought, (iii) the place of residence of the applicant, or (iv) if neither applies, the court of The Hague.
(Source: DCCP, Arts. 3 sub c, 1075, 1076 in conjunction with Arts. 985, 262, 269 and Supreme Court 1 May 2015, ECLI:NL:HR:2015:1194, NJ 2015/454; Dutch only).
The same applies pursuant to the new Act, albeit that the Court of Appeal (Gerechtshof) has jurisdiction and not the Preliminary Relief Judge of the district court.
(Source: DCCP Arts. 3 sub c, 1075 par. 3 and 1076 par. 7 in conjunction with Arts. 985, 262, 269 and Supreme Court 1 May 2015, ECLI:NL:HR:2015:1194, NJ 2015/454 and Court of Appeal 29 May 2018, ECLI:NLGHAMS:2018:1841 and ECLI:NLGHAMS:2018:1842 and Court of Appeal, 6 Nov. 2018, ECLI:NL:GHAMS:2018:4155; Dutch only.)
8. What requirements, if any, must be met for the authority or court to accept jurisdiction over recognition and enforcement of foreign awards (e.g. domicile or assets of respondent in the jurisdiction, etc.)?
The Dutch judge always has jurisdiction with respect to a request for recognition and enforcement of a foreign award. The presence of an actual asset, or the prospect of an asset in the near future, is not required.
(Source: DCCP Art. 3 sub c and Supreme Court, 1 May 2015, ECLI:NL:HR:2015:1194, NJ 2015/454; Dutch only).
9. Is the first decision granting or denying recognition and enforcement obtained through ex parte or inter partes proceedings?
The first decision granting recognition and enforcement is obtained through inter partes proceedings
(Source: DCCP, Arts. 986–988.)
10.
(a) Is the first decision granting or denying recognition and enforcement subject to any form of appeal or recourse?
(i) NYC Regime (asymmetric appeal) (Art. 1075 DCCP): under the old and the new Arbitration Act, the grant of enforcement is, in principle, not subject to appeal. It depends on the possibility of setting aside or revocation in the country of origin of the arbitral award.
(Source: Supreme Court, 25 June 2010, ECLI:NL:HR:2010:BM1679, Supreme Court, 1 May 2015, ECLI:NL:HR:2015:1194, NJ 2015/454; Supreme Court, 31 March 2017, ECLI:NL:HR:2017:555, Dutch only).
(ii) 1076 Regime: Under the old and the new Arbitration Act, both the grant and denial of enforcement are subject to appeal.
(b) How many levels of appeal or recourse are available against the decision?’
(i) NYC Regime (Art. 1075 DCCP):
Under the old Act, the NYC regime has in principle no levels of appeal against the decision to grant enforcement and two levels of appeal against the decision to refuse enforcement.
(Source: Supreme Court, 25 June 2010, ECLI:NL:HR:2010:BM1679; Supreme Court, 1 May 2015, ECLI:NL:HR:2015:1194, NJ 2015/454; Supreme Court, 31 March 2017, ECLI:NL:HR:2017:555; Dutch only.)
The appeal against the decision rendered at the first instance level denying enforcement of a foreign arbitral award may be filed before the Court of Appeal within two months. The decision of the Court of Appeal denying enforcement may be appealed to the Supreme Court within two months, whose review is generally confined to issues of law as opposed to issues of fact.
(Source: DCCP, Arts. 989, 990.)
Under the new Act, the NYC regime has in principle no levels of appeal against the decision to grant enforcement.
(Source: Supreme Court, 25 June 2010, ECLI:NL:HR:2010:BM1679; Supreme Court, 1 May 2015, ECLI:NL:HR:2015:1194, NJ 2015/454; Supreme Court, 31 March 2017, ECLI:NL:HR:2017:555, Dutch only.)
There is one level of appeal against the decision of the Court of Appeal to refuse enforcement. Such decision may be appealed in cassation to the Supreme Court within three months, whose review is generally confined to issues of law as opposed to issues of fact.
(Source: DCCP, Art. 1075(2).)
(ii) 1076 Regime:
Under the old Act, there are two levels of appeal against both the grant and denial of enforcement.
First, an appeal against the decision rendered at the first instance level granting or denying enforcement of a foreign arbitral award may be filed before the Court of Appeal within two months. Second, the decision of the Court of Appeal may be appealed to the Supreme Court within two months, whose review is generally confined to issues of law as opposed to issues of facts.
(Source: DCCP, Arts. 989, 990 in conjunction with Art. 1076(6).)
Under the new Act, there is one level of appeal against both the grant and denial of enforcement by the Court of Appeal (under the new Act the first instance). Such decision may be appealed in cassation to the Supreme Court within three months, whose review is generally confined to issues of law as opposed to issues of fact.
(Source: DCCP, Arts. 985-991 in conjunction with Art. 1076 para. 6.)
(iii) Under both the old and new Arbitration Act, a party may initiate an execution dispute pursuant to Art. 438 DCCP. However, the grounds upon which this recourse is available are limited to exceptional circumstances, such as legal or factual errors in the enforceable award. This recourse is – naturally – also available if the Dutch court grants enforcement. The lack of appeal against a decision which grants enforcement under the NYC regime is therefore somewhat compensated by this option.
(Source: Dutch Supreme Court, 22 April 1983, ECLI:NL:HR:1983:AG4575; Dutch only.)
11. What is the earliest stage in legal proceedings for enforcement of foreign arbitral awards at which a party can obtain execution against assets (i.e. party actually obtains possession of assets as opposed to simply freezing assets)?
Execution against assets is possible from the moment leave is granted for enforcement. The party obtaining leave for enforcement can execute against all executable assets. It should be noted that conservatory measures against assets can, in principle, be easily obtained ex parte as soon as the award has been rendered, and even before that if the claim is plausible enough.
E. Evidence required
12.
(a) What evidence must be supplied for recognition and enforcement of foreign awards (e.g. arbitral award, contract containing arbitration clause, affidavits, witness statements, etc.)?
The following evidence must be supplied:
(i) NYC Regime: original award or a duly certified copy thereof; original agreement referred to in Art. II of the New York Convention or a duly certified copy thereof.
(Source: New York Convention, Art IV(1) in conjunction with DCCP, Art. 1075.)
However, the Dutch judge has previously ruled that failure to comply with this requirement does not automatically lead to inadmissibility or refusal of recognition and enforcement of a foreign award.
(Source: District Court Rotterdam, 18 June 2009, ECLI:NL:RBAMS:2009:BI9930 and District Court Rotterdam, 5 May 2015, ECLI:NL:RBROT:2015:5767; Dutch only.)
(ii) 1076 Regime: original award or a duly certified copy thereof; original arbitration agreement or a duly certified copy thereof.
(Source: DCCP, Art. 1076(1).)
(b) Is it necessary to provide the entire document or only certain parts (e.g. entire contract or only arbitration clause)?
It is not necessary to supply said documents (except for the award) in their entirety (i.e. arbitration clause alone suffices).
(c) Are originals or duly certified copies required?
Originals or certified copies.
(d) How many originals or duly certified copies are required?
One of each of the above-mentioned documents.
(e) Does the authority or court keep the originals that are filed?
No. All documents are returned to the parties.
13.
(a) Is it necessary to provide a translation of the documents supplied?
(i) NYC Regime: the party applying for recognition and enforcement shall produce a translation of the documents in an official language of the country in which the award is relied upon.
(Source: New York Convention, Art. IV(2) in conjunction with DCCP, Art. 1075.)
(ii) 1076 Regime: the competent court may order a translation of the award and of other documents to be submitted.
(Source: DCCP, Art. 1076 in conjunction with Art. 986 par. 3.)
(b) If yes, into what language?
Dutch.
(Source: DCCP, Art. 986(3).)
However, Dutch judges tend to take a pragmatic approach to awards in English, since they have a sufficient command of the English language
(Source: President of the District Court of Amsterdam, 12 July 1984, NJ 1988/12).
The Court of Appeal ruled that not providing an integral translation of the award and/or the arbitration agreement does not, in view of the given circumstances (i.e. arbitral proceedings in English), result in a procedural defect that the request for recognition and enforcement should be ruled inadmissible.
(Source: Court of Appeal The Hague 17 April 2018, ECLI:NL:GHDHA:2018:685; District Court Noord-Nederland 28 Nov. 2017, ECLI:NL:RBNNE:2017:4536; Dutch only.)
This pragmatic approach has recently been confirmed in a more general decision by the Dutch Supreme Court which held that evidence in English, French or German may, in principle, be submitted without translation; evidence in other languages may not be automatically disregarded as such either.
(Source: Supreme Court, 15 January 2016, ECLI:NL:HR:2016:65; Dutch only.)
(c) Is it necessary for the translations to be certified and, if yes, by whom (official or sworn translator, diplomatic or consular agent (of which country?) or some other person)?
Yes, either by an official or sworn translator admitted in the Netherlands or in the country where the award was rendered, or a diplomatic or consular agent in the Netherlands or in the country where the award was rendered.
(Source: New York Convention, Art. IV(2) in conjunction with DCCP, Art.1075 (NYC Regime); DCCP, Art. 1076(6) in conjunction with Art. 986(3) (1076 Regime).
(d) Is it necessary to provide a full translation of the documents or only a translation of certain parts (e.g. entire award or only part setting forth the decisions; entire contract or only arbitration clause)?
Again, Dutch judges tend to take a pragmatic approach. See the sources under Q.13(b).
F. Stay of enforcement
14.
(a) Can the authority or court stay legal proceedings for recognition and enforcement pending the outcome of an application to set aside or suspend the foreign award before the competent authority referred to in Art. V(1)(e) of the New York Convention?
(i) NYC Regime: yes.
(Source: New York Convention, Art. VI in conjunction with DCCP, Art. 1075.)
(ii) 1076 Regime: yes.
(Source: old Act DCCP, Art. 1076(7) in conjunction with Art. 1066(2)-(6); new Act DCCP, Art. 1076(8) in conjunction with Art. 1066(2)-(6).)
(b) On what other grounds, if any, can the authority or court stay legal proceedings for recognition and enforcement (e.g. forum non conveniens)?
None.
(c) Is the granting of a stay of legal proceedings for recognition and enforcement conditional on the provision of security?
(i) NYC Regime: Not necessarily. Upon granting a request to stay the proceedings, the court may, on the application of the party claiming enforcement of the award, order the other party to give suitable security
(ii) 1076 Regime: Not necessarily. Upon granting a request to stay the proceedings, the court may order either party to provide security. Petitioners can also be required to provide security if enforcement is granted, pending setting aside abroad. This alleviates the problem of restituting monies paid under an award that is ultimately annulled
(Source: old Act: DCCP, Art. 1076(7) in conjunction with Art. 1066(5); new Act: DDCP, Art. 1076(8) in conjunction with Art. 1066(5).)
G. Confidentiality
15.
(a) Do the documents filed in legal proceedings for recognition and enforcement form part of the public record? If yes, can any steps be taken to preserve the confidentiality of such documents?
The arbitral award and other documents (e.g. arbitration clause) submitted by the party requesting enforcement do not form part of the public record. The decision on enforcement does form part of the public record and such decision may contain quotes or reiterations of (parts of) the documents and the award.
(Source: DCCP, Art. 28(1) and (3) in conjunction with Art. 988(1).)
(b) If there are hearings on recognition and enforcement, are such hearings confidential? If not, can steps be taken to maintain the confidentiality of the legal proceedings?
The hearings are public. In very exceptional circumstances, the hearings can be held in camera (e.g. where State security interests are involved).
(Source: DCCP, Art. 27(1)( a–d).)
(c) Are judgments on recognition and enforcement published? If yes, can steps be taken to remove the names of the parties or avoid publication of confidential information (such as business or State secrets)?
The judgment on recognition and enforcement is pronounced publicly.
(Source: DCCP, Art. 28(1) in conjunction with Art. 988(1).)
Most decisions are published on the website www.rechtspraak.nl as well as English extracts in, inter alia, the Yearbook Commercial Arbitration. Names can be removed pursuant to a request to that effect. However, the names of legal persons involved are in principle not removed. Names of natural persons are generally removed.
H. Other issues
16. When, if ever, can a party obtain recognition and enforcement of interim or partial foreign awards?
(i) NYC Regime: It is generally accepted that, in addition to final awards, partial awards and interim awards can be enforced.
(ii) 1076 Regime: Under the old Act, it is only possible to obtain recognition and enforcement of final awards or partial final awards.
(Source: old DCCP, Art. 1062(1) and Explanatory Memorandum to Art. 1062; a support for only recognition of interim awards can already be derived from Supreme Court, 24 Dec. 2010, ECLI:NL:HR:2010:BO4929 (Dutch only). For the enforcement of Dutch awards, the new Act uses the words ‘arbitral award’ in general (instead of ‘final or partial final award’) so that it is clear that one can enforce Dutch partial and interim awards (for example a cost decision in an award on jurisdiction. Since Art. 1076 DCCP also uses the words ‘arbitral award’ in general, it can be argued that recognition and enforcement of foreign interim awards is also possible.)
17. When, if ever, can a party obtain recognition and enforcement of non-monetary relief in foreign arbitral awards (e.g. order requiring a party to deliver up share certificates or other property)?
As a practical matter, it is possible to obtain enforcement of foreign awards granting specific performance if they contain a ‘penal sum’ (astreinte). In other cases, non-monetary relief will mostly lead only to recognition of the award.
(Source: DCCP, Arts. 1062(1) and 430.)
18. When, if ever, can a party obtain recognition and enforcement of only part of the relief granted in foreign awards?
A party can in principle obtain recognition and enforcement of only part of the relief granted if such part is severable.
19. When, if ever, can a party obtain recognition and enforcement of foreign awards which have been set aside by the competent authority referred to in Art. V(1)(e) of the New York Convention?
As a general rule, it is not possible to recognize and enforce a foreign award that was set aside in its country of origin.
(Source: New York Convention, Art. V(1)(e) in conjunction with DCCP; Art. 1075 (NYC Regime); DCCP, Art. 1076 (1)(e) (1076 Regime).)
However, in its judgment of 24 Nov. 2017, the Supreme Court concluded that under Art. V(1) of the New York Convention, a judge has a certain degree of discretion to recognise a foreign arbitral award and grant leave to enforce the award in special cases. If there is one or more grounds for refusal in this Article (e.g. the fact that the arbitral award has been set aside by the foreign court), a special case could be, for example, if the arbitral award was set aside abroad on grounds that did not correspond to the grounds for refusal under the New York Convention, and if those grounds were not commonly acceptable by international standards.
A special case could also occur if the foreign judgment setting aside the award was not eligible for recognition in the Netherlands, because the conditions that apply to the recognition of a foreign decision according to Dutch private international law were not fulfilled.
A party that requests, in spite of the existence of a ground for refusal, the recognition or the enforcement of a foreign arbitral award is obliged to furnish facts and evidence of the special circumstances that justify disregarding this specific ground for refusal.
(Source: ECLI:NL:HR:2017:2992, RvdW 2017/1257, Maximov/NLMK, Dutch only.)
In its judgment of 15 June 2018, the Supreme Court denied the requested leave to enforce the arbitral Final Award because the Final Award had been reviewed by a Resolution of other appeal arbitrators. The Supreme Court concluded that the Resolution nullifying the legal effect of the Final Award must be equated with the situation referred to in Art. V(1)(e) New York Convention where a competent authority set aside the arbitral award. It is of no relevance that the operative part of the Resolution does not state in so many words that the Final Award has been set aside.
(Source: ECLI:NL:HR:2018:918, RvdW 2018/727, Diag Human/Republiek Tsjechië, Dutch only).
20. Are there any other procedural or practical requirements relating to recognition and enforcement of foreign awards which are worth mentioning (e.g. unusually high court costs, filing fees, stamp duties, obligation to post security as a condition for seeking recognition and enforcement, obligation to identify the assets that will be the object of enforcement, etc.)?
Country Rapporteur: Albert Jan van den Berg, Marielle Koppenol-Laforce, Isabelle van den Nieuwendijk