Part I: what can be enforced?
1. What counts as an arbitral “award” that can be enforced?
In the Netherlands, an “award” counts as an arbitral “award” when rendered by an arbitral tribunal. A final award, partial final award, and interim award fall within the meaning of an “arbitral award” in the Dutch Code of Civil Procedure (DCCP).
Declaratory awards, including decisions on jurisdiction, constitutive awards, or those dismissing a claim, cannot be enforced. This also applies to procedural orders from a tribunal. However, declaratory awards frequently include cost orders, which are enforceable.
Article I(2) of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958) (New York Convention) is relevant in the context of the enforcement in the Netherlands of a foreign arbitral award.
2. Formal requirements that an award needs to conform with to be enforceable
An arbitral award must be documented in writing and signed by the arbitrators. If the arbitration panel consists of multiple arbitrators, the signatures of the majority are sufficient, provided the reason for any omitted signature is given. The award must include the reasons for the decision unless the parties have expressly agreed otherwise. Furthermore, the award must state the name and place of residence of the arbitrator or each of the arbitrators, the name and place of residence of each of the parties, the date on which the award was made, and the place of arbitration (ie, the legal seat of the arbitration).
3. Orders on interim measures: enforceability
a. Domestic awards
b. International commercial arbitration awards
Unless the arbitral tribunal decides otherwise, a decision by the arbitral tribunal with place of arbitration in the Netherlands on interim measures shall constitute an (enforceable) arbitral award.
If the arbitral tribunal explicitly decides that its decision on interim measures shall not constitute an arbitral award but an order, this order is not enforceable. There is discussion in legal literature as to whether content and context are relevant for an order to be enforceable in less straightforward cases.
Without prejudice to the enforcement of an emergency award, the parties may choose to seek legal assistance from a court in the Netherlands–provided that it has jurisdiction–to protect their rights before or during the arbitration. If, however, a party invokes the existence of an arbitration agreement before submitting a defence, the court shall only declare that it has jurisdiction if the requested decision cannot be obtained in arbitration or cannot be obtained in arbitration in a timely manner.
4. Emergency awards: enforceability
a. Domestic awards
b. International commercial arbitration awards
Unless the emergency arbitrator decides otherwise, a decision (including interim measures) by the emergency arbitrator, with place of arbitration in the Netherlands, shall constitute an (enforceable) arbitral award.
If the emergency arbitrator explicitly decides that its decision (including interim measures) shall not constitute an arbitral award but an order, this order is not enforceable. There is discussion in legal literature as to whether content and context are relevant for an order to be enforceable in less straightforward cases.
Without prejudice to the enforcement of an emergency award, the parties may choose to seek legal assistance from a court in the Netherlands–provided that it has jurisdiction–to protect their rights before or during the arbitration. If, however, a party invokes the existence of an arbitration agreement before submitting a defence, the court shall only declare that it has jurisdiction if the requested decision cannot be obtained in arbitration or cannot be obtained in arbitration in a timely manner.
Part II: resisting enforcement
5 a. How are awards set aside?
A final or partial (domestic) arbitral award shall be subject only to the remedies of annulment and revocation. Arbitral awards in the Netherlands can only be set aside on specific grounds such as the lack of a valid arbitration agreement, improper constitution of the tribunal, the tribunal exceeding its authority, procedural defects as the formal requirements have not been met (see question I(2) above), and conflicts with public policy.
The process involves filing a petition and proving that one or more of these grounds exist. The petition must be filed with the Court of Appeal in whose judicial district the place of arbitration is found. If the place of arbitration is in the judicial district of Amsterdam and the parties have expressly agreed to this place of arbitration, the claim for setting aside may be presented to the Amsterdam Court of Appeal “Netherlands Commercial Court of Appeal”.
The claim for setting aside an interim award may only be presented together with the claim for setting aside a final or partial final award.
b. Can enforcement be resisted if the respondent has not formally applied to set aside the award?
In the Netherlands, enforcement of an arbitral award can be resisted even if the respondent has not formally applied to set aside the award.
The test for refusal of a petition for leave to enforce a domestic award is whether upon a summary investigation, it is found plausible that the award will be set aside or revoked or that it is contrary to public policy.
Foreign awards rendered in states bound by the New York Convention are capable of recognition and enforcement following the requirements of the referenced convention (Article 1075 DCCP). Article 1076 DCCP allows for the enforcement and recognition of any foreign award, irrespective of whether such award was rendered in a state outside or within the New York Convention’s territorial scope. For foreign awards, the test is either: whether one of the grounds for refusal of Article V New York Convention will apply; or whether one of the grounds for refusal of Article 1076 DCCP will apply. The latter are similar but not identical to the grounds set out in Article V New York Convention.
Both under Article 1075 DCCP and under Article 1076 DCCP, the lack of (adequate) reasoning in an award may constitute a ground for refusal of recognition or enforcement to the extent the lack of reasoning may qualify as a tribunal’s non-observance of its mandate or as an infringement of public policy.
c. Can non-parties seek annulment?
Arbitral awards cannot be held against parties that are not in any way bound by the arbitration agreement (save for third parties having acquired contractual rights to which an arbitration agreement applies). Dutch law does not provide for an action for third parties; nor can third parties seek annulment.
d. Grounds to seek setting aside
The grounds for setting aside are:
- the lack of a valid arbitration agreement
- irregular composition of the tribunal
- non-compliance with the tribunal’s mandate
- non-compliance with signature requirements
- lack of reasoning
- infringement of public policy
The grounds for revocation are:
- fraud discovered after the award was made
- discovery of forged documents underlying the award
- discovery of new documents having a potential impact on the arbitral decision
e. Timelines to seek setting aside
The possibility to present the claim for setting aside shall expire three months after the day the award was sent or after the deposit of the award (if agreed upon).
If, however, the award with leave for enforcement is served on the other party, then that party may, notwithstanding the expiry of the three-month time limit, still present a claim for setting aside within three months after such service.
A claim for revocation shall expire three months after the fraud or forgery of documents has become known or the party has obtained the new documents.
f. Grounds to resist enforcement
See question II(5)(b).
g. Which court to go to for setting aside?
The claim for setting aside a domestic award must be presented to the Court of Appeal in whose judicial district the place of arbitration is located.
If the place of arbitration is in the judicial district of Amsterdam and the parties have expressly agreed to this place of arbitration, the claim for setting aside may be presented to the Amsterdam Court of Appeal “Netherlands Commercial Court of Appeal”.
A claim for revocation also needs to be brought before the Court of Appeal in whose judicial district the place of arbitration is located.
h. Formal requirements before court can grant setting aside
It is imperative that all grounds for setting aside are included in the writ of summons; failure to do so will result in those grounds being barred from consideration.
i. Do courts grant stay on enforcement as an interim measure?
A claim for setting aside shall not suspend the enforcement of the award. However, the court which decides on a claim for setting aside may, at the request of the most diligent party, if there are grounds to do so, suspend enforcement until a final decision has been made on the claim for setting aside.
j. What is the appellate mechanism against the decision of the court of first instance?
The only legal remedies open against a final or a partial final arbitral award are setting aside and revocation. These claims must be presented to the Court of Appeal (see question II(5)(g)).
A judgment on an award’s setting aside can be appealed to the Supreme Court on points of law or lack of reasoning by the Court of Appeal.
Part III: enforcing foreign awards
6. New York Convention applicability
The Netherlands is a signatory to the New York Convention. The New York Convention entered into force in the Netherlands on 7 June 1959. The Netherlands made a declaration of reciprocity, as provided by Article 1(3) of the New York Convention.
7. Timelines for enforcement
Where a request for leave for enforcement of a foreign award is filed, a hearing shall be held, which the debtor shall be summoned to attend. Depending on the relevant time limits to be observed and on the debtor’s domicile or place of establishment, it may take some time (a couple of weeks to months) before a hearing can be held and before the decision can be rendered.
8. Which court to go to? Relation with location of assets?
A request for leave for enforcement of a foreign award must be presented to the Court of Appeal in whose judicial district the award debtor is domiciled or in whose judicial district the enforcement is sought.
According to Supreme Court case law, a request for enforcement of a foreign arbitral award in the Netherlands is sufficiently closely connected to the Netherlands, meaning that a Dutch court has jurisdiction to adjudicate the request.
An appeal against leave for enforcement granted by a Court of Appeal does not suspend the enforceability of the foreign arbitral award unless the Court of Appeal has decided otherwise.
9. Can non-parties resist enforcement?
Arbitral awards cannot be held against parties that are not in any way bound by the arbitration agreement (save for third parties having acquired contractual rights to which an arbitration agreement applies). Dutch law does not provide for an action for third parties; nor can they resist enforcement.
10. Compelling disclosure of local assets? How to identify assets available for enforcement?
There is no compelling disclosure of local assets. The Land Registry (kadaster), as well as the Trade Register (Handelsregister) of the Dutch Chamber of Commerce (KvK), can be accessed in the Netherlands for real estate holdings, corporate assets, and ownership structures.
11. Are third-party funded awards enforceable?
Litigation funding by third parties is permitted in the Netherlands both in court and in arbitration procedures. The parties are free to agree on the fees and interest charged for funding. In general, limitations on funding are derived from principles of contract law such as contravention of public policy or the principles of reasonableness and fairness. In addition, the Dutch Claim Code, a self-regulatory instrument, provides for best practices in collective redress actions (including use of third-party funding). In such cases, excessive (cost) compensation charged by the litigation funder and/or lack of transparency can be addressed by the court.
12. What interim reliefs are available pending enforcement of awards? Which of those reliefs are granted ex parte?
Dutch courts have broad powers to order provisional or interim measures during proceedings (including enforcement proceedings). Such interim measures can be sought where there is a danger of the decision no longer being enforceable at a later point in time.
In addition, the claimant can make a separate request for a pre-judgment attachment against the defendant against whom enforcement is sought. Except for attachments on salary, other periodic payments, and exceptional circumstances, the court will in principle decide on a request for pre-judgment attachment ex parte and leave for attachments is usually granted within a few days. An interim relief judge will prima facie review the merits of the claim and will verify whether formal requirements have been met. The pre-judgment attachment is always granted under the condition that a principal action relating to the underlying claim is instituted within a certain time.
A temporary suspension of enforcement can also be seen as an interim measure, see question III(14).
13. Formal requirements for enforcement application: what documents need to be filed in court?
The application for leave for enforcement based on an applicable treaty must be accompanied by the original or an authentic copy of the award, as well as documents showing that the award can be enforced in the country of origin. A Dutch court may request parties to furnish legalised copies and/or certified translations of relevant documents.
Some treaties require the applicant to furnish further documents. Article IV of the New York Convention, for example, requires a party to submit a duly authenticated original or duly certified copy of the arbitral award, and the original or a duly certified copy of the arbitration agreement.
The application for leave for enforcement other than based on an applicable treaty must be accompanied by a copy of the award, together with other documents that are relevant for establishing that the award is enforceable in the country where it was rendered. However, the Dutch court may also require legalisation of these documents.
14. Enforcing awards that have been annulled/set aside at other courts. Enforcing when an annulment application is pending at a foreign court
Unlike the position in the event of a petition for leave to enforce a domestic award, there is no requirement for a foreign award to be declared enforceable or recognised. The extent to which an annulment application pending at a foreign court automatically postpones the enforcement of that award is yet to be determined under the applicable law. Article VI of the New York Convention is relevant in the context of the enforcement in the Netherlands of a foreign arbitral award based on the New York Convention: a defendant can request the Dutch enforcement court to postpone a decision on enforcement pending challenge proceedings before the courts at the seat of the arbitration.
15. Once application for enforcement is allowed, how does the actual enforcement against assets work? What are the remedies available for tracing assets during enforcement proceedings including for assets disposed of by fraud?
After a declaration of enforceability is granted, the creditor can levy post-judgment attachments on the debtor’s known assets.
Attachment is often made on assets that can be sold, such as movable and immovable goods, stock, claims against third parties, and so on. In principle, all the debtor’s assets are susceptible to attachment. The specific requirements for making attachments depend on: (i) the nature of the assets (movable, immovable and/or registered goods, claims on a third party, stock, etc); and (ii) the party holding the assets (the creditor, the debtor, or a third party).
A post-judgment attachment is generally created either at the moment the bailiff draws up an official report that attaches assets, or on service of a notice of the attachment on the debtor. The bailiff draws up an official report that clearly determines which assets are subject to attachment. After the attachment, the assets are generally sold by public auction, or the court may order a different form of sale at the request of either the creditor or the debtor. The creditor then settles the debtor’s claim with the proceeds of the sale.
As long as the assets are not sold, other creditors can also seize the assets. The enforcing bailiff divides the proceeds of the sale of the assets between the parties that have made an attachment (creditors receive the same percentage on their claims regardless of whether they are the first attaching creditor or the last attaching creditor) as well as other parties with a right on the proceeds, if these parties come to an agreement on the apportionment. In the absence of such an agreement, a judge is appointed to decide how the proceeds will be divided. An attachment does not create any privilege for the creditor in case of bankruptcy of the debtor.
Dutch law offers various other coercive measures to enforce judgments. For instance, a claimant can request the court to impose incremental fines on the defendant that will be due and payable if the defendant fails to fulfil certain obligations other than the payment of money (dwangsommen). Other coercive measures, such as the committal to prison (gijzeling) for a failure to comply with a judgment, are less common.
If the creditor has levied pre-judgment attachments, these pre-judgment attachments will convert into an executory attachment automatically, provided that the declaration of enforceability title has been served on the defendant and, if the attachment is placed with a third party, also on that third party.
16. What is the procedure for repatriation of sums awarded after obtaining an order for enforcement?
If a legal action is initiated in the Netherlands to obtain a sum of money expressed in foreign currency, a creditor may demand payment either in that foreign currency or in Dutch currency. A creditor with an enforceable title expressed in foreign currency may also demand payment of either the foreign currency or the Dutch currency during the enforcement. If the obligation is fulfilled in a currency other than the (original) payment obligation, the conversion shall be made at the exchange rate on the day the payment is made. This does not affect the creditor’s right to compensation for damages suffered due to changes in the exchange rate of the original currency.
17. Do courts grant orders for security for costs?
As far as litigation costs are concerned, all individuals without a domicile or habitual residence in the Netherlands who initiate a claim before a Dutch court or join or intervene in proceedings here are required, upon the request of the opposing party, to provide security for the legal costs and damages to which they might be condemned to pay–save for several exceptions. One of these exceptions is that the Netherlands is a party to the Hague Convention on International Access to Justice (1980). Article 14 of this convention grants an exemption from the security for costs (cautio) for (legal) persons.
As for the claim itself, the court may declare the final order enforceable provided that the creditor provides security up to an amount decided by the court.
18. Exchange control regulations: do they affect payments to foreign award holders?
Not that we are aware of.
19. Enforcing awards from non-New York Convention places
If no treaty concerning recognition and enforcement is applicable, or if an applicable treaty allows a party to rely on the law of the country in which recognition and enforcement is sought, an arbitral award made in a foreign state may be recognised in the Netherlands and its enforcement may be sought in the Netherlands by any of the parties under Article 1076 DCCP.
20. Enforcing against sovereigns
Enforcement against sovereigns is possible save for immunity from execution.
For the enforcement by attaching assets, the first question to be answered is whether the assets qualify as “property” of the state within the meaning of Article 19(c) of the UN Convention on Jurisdictional Immunities of States and their Property (2004) (2004 UN Convention). In Dutch case law, the term “property” within the meaning of Article 19(c) of the 2004 UN Convention is interpreted broadly. It does not only include civil property. The term “property of a State” in Article 19 of the 2004 UN Convention must be read as an abbreviated expression of “its property or property in its possession or control”. The decisive factor, therefore, is whether a state exercises control over the assets that are to be attached.
If this question is answered in the affirmative, there is a presumption of immunity from execution, which can be rebutted. Regarding this rebuttal: Dutch authorities and published case law show that immunity from execution is upheld in the vast majority of cases. Exceptions to the rule are not easily accepted. The Samruk decision of the Dutch Supreme Court on 19 December 2020 has made the enforcement against foreign states more complicated, but not impossible. One needs to prove (or at least make plausible) that the relevant assets are intended (also in the mid/long term) for purposes other than public purposes (eg, a commercial destination).
21. Appellate mechanism available?
Enforcement proceedings are in principle not ex parte, and both the applicant and award debtor can appeal to the Supreme Court within three months of the date of the decision, unless the applicable treaty provides otherwise. However, the Dutch Supreme Court has held that, considering Article III of the New York Convention, an award debtor cannot appeal to the Supreme Court if the Court of Appeal has granted leave for enforcement (subject to certain exceptions). This means that under the Article 1075 DCCP regime (where there is an applicable enforcement treaty), an appeal to the Supreme Court is in principle only possible if the Court of Appeal has denied leave for enforcement.
However, under the Article 1076 regime (where there is no applicable enforcement treaty or where the applicable enforcement treaty permits a party to rely on the law of the country where recognition or enforcement is sought) the award debtor can appeal to the Supreme Court if the Court of Appeal has granted leave for enforcement.
Part IV: enforcing domestic awards
22. Timelines for enforcement
Leave to enforce a domestic award will as a rule be pronounced ex parte. It is for the courts to decide at their discretion whether to allow the debtor to appear and to raise a defence. Accordingly, deciding on a request for enforcement will be a matter of weeks at most.
23. Which court to go to? Relation with location of assets?
Leave for enforcement is granted by the provisional relief judge of the district court within whose district the place of arbitration is located.
24. Compelling disclosure of local assets? How to identify assets available for enforcement?
See question III(10).
25. Are third-party funded awards enforceable?
See question III(11).
26. What interim reliefs are available pending enforcement of awards? Which of those reliefs are granted ex parte?
See question III(12).
A temporary suspension of enforcement can also be seen as an interim measure, see question IV(28).
27. Formal requirements for enforcement application: what documents need to be filed in court?
A Dutch court can require parties to supply legalised copies and/or certified translations of relevant documents. Moreover, see question I(2).
28. Filing for enforcement when application for annulment is pending
A petition to set aside a domestic arbitral award does not suspend enforcement of that award. However, the petitioner can request the court adjudicating a set-aside petition to suspend the enforcement of the award pending the outcome of the set-aside proceedings.
29. Once application for enforcement is allowed, how does the actual enforcement against assets work? What are the remedies available for tracing assets during enforcement proceedings including for assets disposed of by fraud?
See question III(15).
30. Do courts grant orders for security for costs?
See question III(17).
31. Appellate mechanism available?
If the provisional relief judge of the district court grants the leave for enforcement, the only legal remedies for the other party are setting aside and revocation. Setting aside or revocation of the arbitral award entails, by operation of law, the setting aside or revocation of the leave for enforcement. Regarding the appellate mechanism in case of setting aside or revocation, see question II(5)(j).
