Brexit Blog 13: Recognition and enforcement of UK judgments in the Netherlands: the Dutch government gives some guidance – Lexology

On 13 December 2021 the Dutch government answered parliamentary questions concerning the recognition and enforcement of post-Brexit UK judgments in the Netherlands (the Answers). Whilst some Dutch practitioners, legal scholars and at least one particular court argued that parties could revert to the old 1967 Convention on the reciprocal recognition and enforcement of judgments in civil matters between the UK and the Netherlands (the 1967 Convention), the Dutch government takes the position that the 1967 Convention no longer applies. How then are post-Brexit UK judgments recognized and enforced in the Netherlands?

UKs exit from Brussels I Regulation Recast and 2007 Lugano Convention

In our previous Brexit Blog 12 we discussed that the Brussels I Regulation Recast and 2007 Lugano Convention are no longer applicable to the UK.

Despite attempts by the UK to rejoin the 2007 Lugano Convention, the European Commission prevented it from doing so, arguing that the convention is an auxiliary measure for the EUs economic relations with countries that are members of the European Free Trade Association. Fundamental freedoms and policies of the single market are not included in the Trade and Cooperation Agreement between the UK and the EU. The European Commission considers the multilateral 2005 Hague Choice of Court Convention (the 2005 Hague Convention) and the 2019 Hague Conference Convention on the Recognition and Enforcement of Judgments (2019 Judgments Convention) a suitable framework for judicial cooperation with the UK in civil and commercial matters.

The Dutch government has argued that in view of the intensive legal services and trade relationship between the UK and the EU (and the Netherlands in particular), the UKs accession to the 2007 Lugano Convention would offer businesses and citizens legal certainty in cross-border disputes. For now, however, accession of the UK to the 2007 Lugano Convention seems unlikely. The Dutch government has indicated in its Answers that it will strive to ensure that further discussion on the UKs request for accession to the 2007 Lugano Convention can take place at a later moment, taking into account all relevant considerations.

Recognition and enforcement of post-Brexit UK judgments in the Netherlands

Legal practitioners, scholars and one Dutch court (ECLI:NL:RBOVE:2018:4365) have assumed that the 1967 Convention would govern the recognition and enforcement of post-Brexit UK judgments in the Netherlands. The Dutch government has now made it clear that following the UKs accession to the 1968 Brussels Convention the 1967 Convention was replaced and lost its relevance for the European part of the Kingdom of the Netherlands. To this day, the 1967 Convention only remains in force and effect in respect of (i) the Isle of Man, Guernsey and Jersey and (ii) the Caribbean part of the Kingdom of the Netherlands.

The question then remains which (international) rules govern the recognition and enforcement of UK judgments in the Netherlands. The Answers of the Dutch government provide for some guidance:

In other words, post-Brexit judgments obtained in the UK can still quite easily be recognized and enforced in the Netherlands pursuant to the 2005 Hague Convention (if applicable) and in any event based on article 431 DCCP, with the side note that a Dutch judgment (in Dutch legal proceedings) needs to be obtained first if the latter route is followed.

Finally, the government states in its Answers state that the Dutch State Commission on Private International Law is expected to present its recommendations on a revision of article 431 DCCP by spring 2022. The aim will be to introduce a fully-fledged statutory regulation for the recognition and enforcement of judgments from countries with no enforcement treaty with the Netherlands.

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Brexit Blog 13: Recognition and enforcement of UK judgments in the Netherlands: the Dutch government gives some guidance - Lexology