This Country Answer reflects the state of the law as of 31 December 2012. Please refer to the explanations in the chapter entitled Preliminary Note.

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 (NYC).

(Source: Decree of 14 Oct. 1963, No. 417.)

(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)?

(i) Art. 1075 in conjunction with Arts 985(990 of the Dutch Code of Civil Procedure ('DCCP' (Wetboek van Burgerlijke Rechtsvordering)) (hereinafter the 'NYC Regime'); (ii) Art. 1076 in conjunction with Arts. 985(990 DCCP, which can be relied upon by a petitioner on the basis of the more favorable right provision of Art. VII(1) NYC; (hereinafter the '1076 Regime'); (iii) case law.

Unless otherwise indicated, the answers below apply to both the NYC Regime and the 1076 Regime.

Arts. 1075 and 1076 DCCP in fact refer to Arts. 985(991 DCCP. Art. 991 DCCP has since been deleted, but Arts. 1075 and 1076 DCCP have not yet been amended.

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.)

(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?

President of the district court (Voorzieningenrechter) at the place of residence of the respondent or the place where enforcement is sought.

(Source: DCCP, Arts. 1075, 1076 in conjunction with Art. 985.)

Note: The provisions of Art. 985 DCCP differ from the general provisions for jurisdiction (Art. 262 DCCP), which provide that jurisdiction is also created by the domicile or actual place of residence of either party. It is questionable whether the provisions of Art. 262 DCCP apply in case of recognition and enforcement of foreign awards.

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.)?

There are no requirements other than those mentioned above.

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) Under the NYC Regime: grant of enforcement-in principle, no; denial of enforcement-yes.

Note: An appeal under Arts. 989 and 990 DCCP against a decision granting enforcement may be declared inadmissible in light of the Supreme Court's recent interpretation of Art. III NYC. Such an appeal was deemed more onerous than proceedings for the enforcement of an arbitral award rendered in the Netherlands for which no direct appeal against a decision granting enforcement is available (the arbitration law provides that in such a case an application for setting aside is to be made before the Dutch court).

(Source: Supreme Court, 25 June 2010, Yukos v. Rosneft.)

(ii) Under the 1076 Regime: an ordinary appeal and an appeal to the Supreme Court for cassation are available against decisions both granting and denying enforcement.

(b) How many levels of appeal or recourse are available against the decision?'

(i) Under the NYC regime: granting of enforcement-none; refusal of enforcement-two.

First, an 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.

(Source: DCCP, Art. 989.)

Second, the decision of the court of appeal denying enforcement may be appealed to the Supreme Court, whose review is generally confined to issues of law as opposed to issues of fact.

(Source: DCCP, Art. 990.)

(ii) Under the 1076 Regime: two 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.

(Source: DCCP, Art. 989.)

Second, the decision of the court of appeal may be appealed to the Supreme Court, whose review is generally confined to issues of law as opposed to issues of fact.

(Source: DCCP, Art. 990.)

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.

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) Under the NYC Regime: original award or a duly certified copy thereof; original agreement referred to in Art. II NYC or a duly certified copy thereof.

(Source: NYC, Art IV(1) (in conjunction with DCCP, Art. 1075).)

(ii) Under the 1076 Regime: original award or a duly certified copy thereof; original arbitration agreement or a duly certified copy thereof.

(Source: DCCP, Art. 1076(1) and (6).)

(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 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) Under the 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: NYC, Art. IV(2) (in conjunction with DCCP, Art. 1075).)

(ii) Under the 1076 Regime: the president of the district court may order a translation of the award and other documents to be submitted.

(Source: DCCP, Art. 1076 in conjunction with Art. 986 subsection 3.)

(b) If yes, into what language?

Dutch.

(Source: DCCP, Art. 986 subsection 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, SPP (Middle East) Ltd. (Hong Kong) v. The Arab Republic of Egypt. )

(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 or a diplomatic or consular agent (of the country where the award was rendered).

(Sources: NYC, Art. IV(2) in conjunction with DCCP, Art.1075 (NYC Regime); DCCP, Art. 1076(6) in conjunction with Art. 986 subsection 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.

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) Under the NYC Regime: yes.

(Source: NYC, Art. VI in conjunction with DCCP, Art. 1075.)

(ii) Under the 1076 Regime: yes.

(Source: DCCP, Art. 1076(7) in conjunction with Art. 1066(2).)

(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?

Not necessarily. Upon granting a request to stay the proceedings, the court may order either party to give security, albeit that the conditions for security are more elaborate under the 1076 Regime. 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.

(Sources: NYC, Art. VI in conjunction with DCCP, Art. 1075 (NYC Regime); DCCP, Art. 1076(7) in conjunction with Art. 1066(5) (1076 Regime).)

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 (although this is debated in legal literature). The decision on enforcement does form part of the public record.

(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.

(Source: DCCP, Art. 27 (1).)

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 and English extracts in, inter alia, the Yearbook Commercial Arbitration. Names can be removed.

H. Other issues

16. When, if ever, can a party obtain recognition and enforcement of interim or partial foreign awards?

It is possible to obtain recognition and enforcement of partial awards, not interim awards.

(Source: cf. DCCP, Art. 1062(1).)

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: cf. 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 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.

(Sources: NYC, Art. V (1)(e) in conjunction with DCCP, Art. 1075 (NYC Regime); DCCP, Art. 1076 (1)(e) (1076 Regime).)

However, the Amsterdam Court of Appeal rendered a highly controversial decision in which it interpreted Art. V(1)(e) NYC as requiring the foreign court judgment setting aside the award to be recognized pursuant to the general rules for recognition of foreign court judgments provided for in Art. 431 DCCP. The Court of Appeal reasoned that only if the foreign court judgment could be recognized in the Netherlands was it possible to deny enforcement of the annulled award under Art. V(1)(e) NYC.

(Sources: Court of Appeal of Amsterdam, 28 Apr. 2009, Yukos v. Rosneft; see also District Court of Amsterdam, 17 Nov. 2011, Nikolai Viktorovich Maximov v. OJSC Novolipetsky Metallurgichesky Kombinat.)

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.)?

No.

Country Rapporteur:

Albert Jan van den Berg