Enforcing a US Judgment in the Netherlands: A Practical Overview

When it comes to enforcing US court judgments in the Netherlands, there’s no direct recognition based on any binding Dutch treaty or European regulation. Unlike within the EU, where member states often recognize each other’s judgments through established regulations, US rulings face a different path. Under Dutch law, specifically Article 431 of the Code of Civil Procedure, US judgments can be enforced in the Netherlands by either:

1. The ‘disguised exequatur’ procedure, or
2. Resubmission of the original claim to a Dutch court for retrial.

In practice, the faster and more efficient option—the ‘disguised exequatur’— is almost exclusively used. So how does this work?

The ‘Disguised Exequatur’ Process

In 2014, the Dutch Supreme Court’s ‘Gazprom judgment’ outlined when a foreign (including US) judgment can be recognized and enforced in the Netherlands. The court identified four essential conditions, all of which must be met:

1. Jurisdiction: the jurisdiction of the court that rendered the judgment is based on a ground of jurisdiction that is generally accepted by international standards;
2. Due Process: the foreign judgment was rendered in a court proceeding that met the requirements of due process and with adequate safeguards; and
3. Public Policy: recognition of the foreign judgment is not contrary to Dutch public policy;
4. Consistency: the foreign judgment is not irreconcilable with a judgment of a Dutch court between the same parties or with an earlier judgment of a foreign court between the same parties in a dispute having the same subject matter and based on the same cause of action, provided that such earlier judgment is capable of recognition in the Netherlands.

These principles have allowed several US judgments to be recognized in the Netherlands in recent years, including the following:

• 2020: A Florida court judgment was recognized by the Court of The Hague.
• 2021: A Caribbean court in Aruba (part of the Netherlands) recognized a judgment from Missouri based on the above-mentioned Gazprom criteria.
• 2021: The Court of Appeal in Den Bosch recognized a judgment from Tennessee, although punitive damages were not upheld (more on this below).
• 2023: A Texas court ruling was recognized by the Court of Noord-Holland.

Punitive damages exception

Punitive damages, a common element in US court rulings, present a challenge when seeking enforcement in the Netherlands. The Dutch legal system focuses on compensation rather than punishment, and punitive damages are generally considered contrary to Dutch public policy.

Although the extent to which punitive damages can be imported into the Dutch legal system is a hotly debated issue, the Dutch Supreme Court has not yet ruled on it. In a 2021 case, the Dutch Attorney General emphasized that while Dutch law doesn’t completely bar the recognition of foreign judgments with punitive damages, they are typically rejected. Punitive damages are intended to punish and deter rather than compensate for actual damages, which conflicts with the Dutch approach to damages, which seeks to fully compensate for the harm suffered — no more, no less.

European Context: Can a US Judgment Be Enforced Across the EU?

A critical consideration for companies and individuals is whether a US judgment recognized in the Netherlands can be enforced in other EU countries. The answer is probably no.

Based on case law of the European court of justice, it is likely – but not yet certain – that an exequatur on a US judgment obtained in one jurisdiction cannot be transferred to other EU jurisdictions. Normally, this is possible based on an EU Treaty, the Regulation (EU) No. 1215/2012. This is likely not the case with regard to Dutch recognition proceedings, because of a ruling by the European Court of Justice in April 2022 (J/H Limited).

This European case concerns a dispute over the enforcement in Austria of a judgment for an order for payment issued by the High Court of Justice of England & Wales on the basis of two judgments rendered in Jordan. The European Court of Justice ruled that based on the Regulation (EU) No. 1215/2012, a judgment containing an order for payment, made by a court of a Member State (England & Wales) on the basis of final judgments delivered in a third State (Jordan), constitutes a judgment and is enforceable in the other Member States (in this case Austria) if it was delivered following adversarial proceedings in the Member State of origin (England & Wales) and declared enforceable there. This probably means that a Dutch judgment recognizing a US judgment on the basis of the Gazprom judgment (e.g. without full adversary proceedings) cannot be recognized and enforced in other EU countries on the basis of the Regulation. This is also the view in Dutch legal literature.

Conclusion

In general, US judgments are recognized in the Netherlands, with the exception of punitive damages. Moreover, while Dutch recognition is possible, you should not assume that it will lead to enforcement throughout the EU. If you have a US judgment that needs to be enforced in the Netherlands, or if you have questions about how Dutch courts deal with foreign judgments, please do not hesitate to contact Lennard Noordzij for advice.