The UK formally left the EU on 31 January 2020. During the transition period (which ended on 31 December 2020), the relationship between the UK and the EU was governed by the Withdrawal Agreement. Under the Withdrawal Agreement, all EU law continued to apply in the UK.

Pre-Brexit and during the transition period, UK judgments were enforced within the EU on the basis of the Regulation No. 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast) (“Brussels I Recast”). On the basis of the Brussels I Recast, an enforceable judgment rendered in one of the member states of the EU is enforceable in another member state without any declaration of enforceability being required. On that basis, a bailiff was able to easily enforce a judgment rendered by a UK court in the Netherlands (and vice versa).

In 2020, we updated you on the enforcement of UK Judgments in the Netherlands in case of a no-deal Brexit. On 24 December 2020 EU and UK negotiators reached the EU-UK Trade and Cooperation Agreement. This agreement sets out the rules which apply on the EU-UK partnership as of 1 January 2021. The enforcement of judgments is however not regulated in this agreement.

Options to enforce UK judgments in the Netherlands

As the Brussels I Recast no longer applies to UK judgments rendered in legal proceedings that have been initiated after the end of the transition period^₁, the question raised how such UK judgments (rendered in a civil or commercial matter) should be enforced in the Netherlands?

In literature, different options were explored to recognize and enforce UK judgments that are rendered in proceedings that have been initiated after 31 December 2020 in the Netherlands. Either the UK could accede to the Lugano Convention, an old bilateral convention could revive, the Brussels Convention could revive and/or the 2005 Hague Convention could be applied. Apart from the second option (the bilateral convention), these options are not typically Dutch, but are potentially applicable to all EU member states.  

On 15 November 2022 the Amsterdam District Court (the “Amsterdam Court”) rendered a decision on the enforcement of a UK judgement in the Netherlands (which was published beginning of this year). Today, two years after the end of the transition period, not all explored options seem to be possible (anymore).

The Lugano Convention

A first option was that the UK would become a party to the convention between the EU (Denmark separately) and Iceland, Norway and Switzerland on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the “Lugano Convention”). The Lugano Convention contains a regime for the recognition and enforcement of judgments very similar to the predecessor of the Brussels I Recast (Regulation (EU) No. 44/2001 or the Brussels I Regulation). The UK wanted to accede to the Lugano Convention. However, the European Commission has informed the European Parliament and Council of its assessment on the application of the UK to accede the Lugano Convention. The European Commission concludes that the European Union should not give its consent to the accession of the UK to the Lugano Convention. The decision can only be taken by the EU if the Commission puts a proposal to the European Council, which it appears to have no intention of doing. Although officially the EU did not take a decision on this topic, it is likely that the UK will not accede the Lugano Convention.

An old Bilateral Convention

​A second option explored was the revival of an old bilateral convention. On 17 November 1967 the Bilateral Convention regarding the recognition and enforcement of judgments in civil matters (the “Bilateral Convention”) was concluded between the Netherlands and the UK. On the basis of this Bilateral Convention, UK court judgments were recognised and enforced in the Netherlands without a new trial. However, an exequatur procedure was necessary. In this exequatur procedure, leave to enforce would have to be granted by a Dutch Court. The Dutch Court had limited grounds to refuse granting the leave to enforce.

In December last year, the Dutch Minister for Legal Protection already stated that in 1987 the Bilateral Convention was replaced – for the European part of the Netherlands – by the Brussels convention on jurisdiction and the enforcement of judgments in civil and commercial matters (known as the “Brussels Convention” or in Dutch het EEX-verdrag), for the subjects covered by the Brussels Convention. The Brussels Convention was the predecessor of the Brussels I Regulation. He stated that due to this replacement, the Bilateral Convention was already no longer in force between the European part of the Netherlands and the UK since 1 January 1987.

On 15 November 2022 the Amsterdam Court also concluded that the Bilateral Convention is no longer in force between the European part of the Netherlands and the UK. According to the Amsterdam Court, the Brussels Convention clearly shows that it was the intention of the EU that the recognition and enforcement of judgments in civil and commercial matters would henceforth be governed by the Brussels Convention. As a result, the Bilateral Convention is deemed terminated within the meaning of the Vienna Convention on the Law of Treaties.

Brussels Convention

The Amsterdam Court furthermore acknowledges that the Brussels Convention, which could have been a third option, also no longer applies because it was replaced by the Brussels I Regulation (which was later replaced by the Brussels I Recast). The Amsterdam Court states that the Brussels Convention did not revive. The Brussels Convention is only retained for the matters that are not covered by the Brussels I Recast. Moreover, the UK informed the Council of the EU that the Brussels Convention ceased to apply in the UK. There is no reason for the states bound by the Brussels Convention to apply the Brussels Convention in relation to the UK.

The 2005 Hague Convention

A fourth option is provided by the Hague Convention on Choice of Court Agreements (the "2005 Hague Convention", as signed on 30 June 2005). The 2005 Hague Convention also governs the recognition and enforcement of civil judgments. The scope of the 2005 Hague Convention is however limited.

First, the 2005 Hague Convention only applies to matters in which the parties have included an exclusive forum choice in their agreement. Therefore, most non-contractual disputes are out of scope. Also, the 2005 Hague Convention excludes a variety of matters, including for example anti-trust matters. Moreover, the 2005 Hague Convention is not applicable when the forum clause is asymmetric. Sometimes a choice of forum clause is drafted with the intention of being exclusive in relation to the claims of one party, but not in relation to claims of the other party. For the purposes of the 2005 Hague Convention these clauses are considered non-exclusive as a result of which the forum clause does not fall within the scope of the 2005 Hague Convention.

Furthermore, the 2005 Hague Convention only applies to exclusive choice of court agreements concluded after the entry into force of the convention in the state of the court chosen. This means that the 2005 Hague Convention shall only apply in cases in which parties agreed to the exclusive jurisdiction of a UK court, when such agreement was entered into after the UK became a party to the 2005 Hague Convention.

The UK states that the 2005 Hague Convention came into force on 1 October 2015 and that the UK has been a contracting state without interruption since that date. The European Commission, on the other hand, states that the UK only became a party to the 2005 Hague Convention on 1 January 2021. Courts in EU member states are likely to follow the European Commission's approach and will probably not apply the 2005 Hague Convention to contracts in which parties agreed to the exclusive jurisdiction of a UK court, concluded before 1 January 2021. 

In cases where an exclusive choice of court agreement for UK courts has been concluded between parties before 1 January 2021, it is advisable to renew this agreement.

On 15 November 2022, the Amsterdam Court did not decide on whether the choice of forum clauses in the case at hand were made after the 2005 Hague Convention entered into force, because it decided that the choice of forum agreement was asymmetric and therefore already fell outside the scope of the 2005 Hague Convention.

New procedure before Dutch Courts

The Amsterdam Court concluded that in the case at hand the enforcement of UK judgments could not take place on the basis of any convention. Therefore, pursuant to Dutch law the actions resulting in the UK judgments must be dealt with again by the Dutch Courts.

In order to enforce such UK judgment in the Netherlands, the claimant can claim before the Dutch Court that the other party is ordered to do all that it was ordered to do by the decision of the foreign court (i.e. by the UK judgment). The Dutch Court must assess whether and to what extent, given the circumstances of the case, it grants authority to the judgment rendered by the foreign court. In principle, a foreign judgment is recognised in the Netherlands if four conditions formulated in the Gazprom judgment are met. The claimant is also free to ask the Dutch Court for a new substantive assessment of the dispute. In the latter case, it is up to the Dutch Court to decide whether, and if so, what evidential value should be attributed to the foreign decision.

In any event, these new proceedings will involve the submission of various documents and certified translations, and will obviously lead to a certain amount of delay and additional costs.

Future possibility to solve the problems? The 2019 Hague Convention

On 2 July 2019, the Hague Conference on Private International Law (HCCG) concluded a new international treaty on the enforcement of judgments: 'The Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters', also known as 'The 2019 Hague Judgments Convention'. It complements the 2005 Hague Convention. On 12 July 2022, the European Union formally acceded to the convention.

Once in force, the convention will thus apply to the recognition and enforcement of judgments of EU member states in the other contracting states and vice versa. This will make it easier for EU citizens and businesses to have a judgment rendered in the EU recognised and enforced in a non-EU country and vice versa.

As discussed above, the UK is already a party to the 2005 Hague Convention, under which a judgment of a UK court can be enforced directly in the Netherlands if that court's jurisdiction was based on an exclusive forum choice clause. It is hoped and expected that the UK will also accede to the 2019 Hague Convention. Should that happen indeed, from then on, judgments of UK courts could also be directly enforced in the Netherlands without those UK courts having based its jurisdiction on an exclusive forum choice clause and thus also in case of an asymmetric choice of court clause.

Do not hesitate to contact us should you wish to get further information on the enforcement of UK judgments in the Netherlands.

References

*1 It will still apply to judgments rendered in legal proceedings instituted before the end of the transition period pursuant to article 67 paragraph 2 of the withdrawal agreement.