Challenging and Enforcing Arbitration Awards: Netherlands

1. Must an award take any particular form?

Netherlands

Requirements for the form of arbitral awards are set out in the Dutch Arbitration Act (as amended, effective from 1 January 2015), which forms part of Book 4 of the Dutch Code of Civil Procedure.

An award must be in writing and, in principle, signed by all arbitrators. A qualified electronic signature is also permitted in terms of the Dutch Code of Civil Procedure. If an arbitrator refuses to sign the award, the remaining arbitrators must make mention of this in the award. A similar statement must be made if a minority of arbitrators is not able to sign and it is unlikely that this impediment will be resolved within a reasonable time (for example, in the event of serious illness). An arbitral award that is not signed or that is incorrectly signed is liable to be set aside.

The award must contain the names and addresses of the arbitrators and the parties, and the date and place where the award was rendered. Further, the award must contain the tribunal’s decision, namely an operative part of the award in which each of the claims is granted or denied in whole or in part.

Finally, the award must include reasons for the tribunal’s decision. For every portion of the operative part in which a claim is granted or denied, the body of the award should provide some reasoning for that particular decision. This does not apply in certain arbitrations pertaining to the quality or condition of goods, awards recording a settlement reached by the parties and in all other cases where the parties have agreed in writing that no reasoning for the decision shall be given. Save for these circumstances, failure to give reasons can result in an award being set aside.

In respect of delivery of the award, the tribunal must ensure that the original of every final, partial final and interim award (or a copy certified by an arbitrator or a third party as nominated by the parties, such as an arbitral institution) is sent to the parties as soon as possible after it is made. The tribunal may do so by requesting or permitting an arbitral institution to dispatch the award on its behalf, as is typically the practice in an institutional arbitration. The parties may also agree that the tribunal is required to have the original award deposited with the district court registry within whose judicial district the seat of arbitration is situated. In practice, awards are often sent by email to the parties if email was used by the tribunal and the parties to communicate during the proceedings. In such cases, the Dutch Code of Civil Procedure permits electronic copies to be treated as original or certified copies of the award.

2. Are there provisions governing modification, clarification or correction of an award? Are there provisions governing retractation or revision of an award? Under what circumstances may an award be retracted or revised (for fraud or other reasons)? What are the time limits?

Netherlands

Modification, clarification or correction

The Dutch Arbitration Act allows for correction of manifest computing or writing errors in the award after it has been delivered. Other manifest errors may also be corrected at the request of one of the parties, as long as the errors can be rectified easily. Similarly, if the names and addresses of the parties and the arbitrators, or the date and place of the arbitral award, are stated incorrectly or are partly or entirely missing, a party may request that the tribunal correct the error or omission, or the tribunal may do so on its own motion.

The Dutch Arbitration Act does not exclude specific types of awards, and hence final, partial, additional and interim awards may be subject to a request for correction. A tribunal may also interpret an earlier (partial) award, provided the tribunal’s mandate is still in effect. Corrections in this context must be distinguished from a situation in which an arbitral tribunal has failed to decide on one or more matters that have been submitted to it. In the latter case, either party may request that the arbitral tribunal render an additional award.

An application to correct an award must be made to the tribunal in writing within the time limit agreed by the parties or, if there is no such agreement, no later than three months after the day when the award is dispatched to the parties. The tribunal may, on its own motion, make a correction within the same time constraints. Before a tribunal decides on a request to correct an award or before it corrects an award on its own motion, it must give the parties the opportunity to express their views on the proposed correction.

Revocation

An award may be revoked only if:

• it is wholly or partially based on fraud committed in the arbitration;
• after the award has been rendered, it transpires that the award is wholly or partially based on records that have been forged; or
• relevant documents potentially influencing the award have been withheld by a party during the course of the proceedings.

The court is not permitted to decide the merits of the dispute absent the fraud, forgery or withholding of documents. If grounds for revocation are present, the court may wholly or partially set aside the award, following which the dispute will be referred to arbitration proceedings anew. Alternatively, the court may remit the matter to the original tribunal and permit it to render a substitute award that eliminates the ground for revocation.

A claim for revocation must be brought before the competent court of appeal within three months of one of the grounds for revocation becoming known to the party requesting the revocation.

3. May an award be appealed to or set aside by the courts? What are the differences between appeals and applications to set aside awards?

Netherlands

An arbitral appeal will be possible only if the parties have explicitly agreed to permit an appeal. An appeal is usually made to a second tribunal, depending on the parties’ agreement. Dutch courts do not have jurisdiction over appeals of arbitral awards unless the parties specifically agree to this in the arbitration agreement.

The Dutch Arbitration Act provides for two exhaustively listed forms of recourse against arbitral awards to a court: setting aside and revocation.

Setting aside

An application for setting aside can be made only against a final or partial final arbitral award. An application to set aside an interim award may only be made in conjunction with an application for setting aside a final or partial final arbitral award. The period within which an application must be filed is usually three months from the day the award was delivered or, in the case of an arbitral appeal provision, three months after expiry of the time limit for lodging an appeal.

The seat of the arbitration must be in the Netherlands for the state courts to have jurisdiction. An application for setting aside must be made by a writ of summons addressed to the competent court of appeal of the district of the seat of arbitration. All grounds on which the party relies for the setting aside must be mentioned in the writ of summons, failing which the party will be barred from invoking them at a later stage.

An award may be set aside only on one or more of the following grounds:

• absence of a valid arbitration agreement;
• the arbitral tribunal was constituted in violation of the applicable rules;
• the arbitral tribunal has manifestly not complied with its mandate;
• the award was not signed in accordance with the Dutch Code of Civil Procedure or did not contain reasons; or
• the award, or the manner in which it was made, violates public policy.

After the court of appeal has given a decision, the parties can appeal in cassation to the Supreme Court, unless they have agreed to exclude the possibility of cassation.

Revocation

An award may be revoked only if:

• it is wholly or partially based on fraud committed in the arbitration;
• after the award has been rendered, it transpires that the award is wholly or partially based on records that have been forged; or
• relevant documents potentially influencing the award have been withheld by a party during the course of the proceedings.

A claim for revocation must be brought before the competent court of appeal within three months of one of the grounds for revocation becoming known to the party requesting the revocation. If grounds for revocation are present, the court may wholly or partially set aside the award, following which the dispute will be referred to arbitration proceedings anew. Alternatively, the court may remit the matter to the original tribunal and permit it to render a substitute award that eliminates the ground(s) for revocation.

4. Is there a time limit for applying for the setting aside of an arbitral award?

Netherlands

The Dutch Arbitration Act provides for two stages in which parties can apply for the setting aside of arbitral awards. For each of these phases a time limit of three months applies.

First phase: Dispatch or deposit of the award

The three-month time limit commences after the day the arbitral award is dispatched, which is deemed to be four weeks after the date of the arbitral award. If the parties agree to deposit the arbitral award with the court, the first phase will commence the day after the date of deposit.

Second phase: Execution of the award

This phase commences when the arbitral award and leave for enforcement of the award are served on the opposing party. An application for setting aside an arbitral award can be made during this stage irrespective of the expiry of the first phase.

5. What kind of arbitral decision can be set aside in your jurisdiction? Can courts set aside partial or interim awards?

Netherlands

Applications for setting aside can be made against final awards and partial final awards. An award is considered final, or partially final, if a final decision on the entire claim or a part of the claim is included in its operative part. Setting-aside applications against interim awards – that is, awards that do not contain a final decision on a claim or part of a claim in their operative part – can only be made with an application for the setting aside of the partial final award or final award.

6. Which court has jurisdiction over an application for the setting aside of an arbitral award? Is there a specific court or chamber in place with specific sets of rules applicable to international arbitral awards?

Netherlands

The court of appeal in the judicial district where the seat of the arbitration is located has jurisdiction over an application to set aside an arbitral award.

7. What documentation is required when applying for the setting aside of an arbitral award?

Netherlands

A setting-aside application is made in the form of a writ of summons, detailing all of the grounds for setting aside the arbitral award. The application must first be served on the other party or parties to the arbitration and subsequently submitted to the court of appeal in the form of one original ‘as served’ version of the writ of summons and one copy thereof. The writ of summons must be accompanied by the following exhibits:

• a copy of all arbitral (interim) awards;
• proof of the place of residence of the other party or parties to the arbitration; and
• if the writ of summons was served on the other party or parties abroad, original versions of documents showing that service was performed in accordance with those local requirements.

The National Procedural Regulations for Civil Writ of Summons Proceedings at the Courts of Appeal in the Netherlands state that the originals of the exhibits do not have to be delivered, unless stated otherwise in the Regulations and unless there is a possibility of depositing the exhibits with the court registry. If the exhibits are deposited, the registrar will provide a copy of a protocol indicating that exhibits were registered. The Regulations do not specify whether the copies of exhibits have to be duly certified.

If the respondent resides outside the Netherlands, service must be effected through the 1965 Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, or Regulation (EC) No. 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), if applicable.

8. If the required documentation is drafted in a language other than the official language of your jurisdiction, is it necessary to submit a translation with the application for the setting aside of an arbitral award? If yes, in what form must the translation be?

Netherlands

Translations of arbitral awards and other evidence, in principle, do not have to be provided if the language of the original document is English, German or French, though the court may instruct parties to provide translations. If translations are required – either because the foreign language of the original document is not English, German or French, or because the court requires a translation – the court may order that the translations be certified by a sworn translator. Courts tend not to order that a translation be certified by a sworn translator unless there is an objection raised by a party as to the validity of an uncertified translation.

9. What are the other practical requirements relating to the setting aside of an arbitral award? Are there any limitations on the language and length of the submissions and of the documentation filed by the parties?

Netherlands

Length of submissions

New page limits are applicable to submissions in appellate court cases commenced as of 1 April 2021. Pursuant to this new regulation, a limit of 25 pages would apply to any writ of summons for the setting aside of arbitral awards, and any statement of defence filed in response. A limit of 15 pages would apply to any subsequent submission. The regulation includes specific formatting specifications for written submissions – including fonts, font sizes and margins – to ensure uniformity. The announced page limit restriction has led to complaints from the Netherlands Bar Association on the grounds that this regulation lacks foundation in law and that it places undue restrictions on litigants’ fundamental procedural rights, including their right to be heard and right to due process. Following consideration of such complaints, in December 2021 the Advocate General issued a preliminary ruling that, while the limit of 25 pages is admissible and does not violate a party's right of access to justice, a procedural document longer than the page limit may not automatically be rejected in its entirety as there may be circumstances in which a longer submission is necessary. Whether longer documents are permissible must be determined in each case.   

Language

Proceedings in Dutch courts are typically conducted in Dutch and, thus, written and oral submissions of the parties must be delivered in Dutch. However, if Amsterdam is chosen as the seat of arbitration and the parties are in agreement, setting-aside proceedings can be conducted in English before the Netherlands Commercial Court. In such a case, the decision on setting aside will then also be delivered in English. For matters administered by the Netherlands Arbitration Institute (NAI), the NAI is expected to introduce new Arbitration Rules during 2022. One of the proposed new rules is that in the absence of an agreement by the parties, Amsterdam will be the standard place of arbitration for arbitrations conducted in English. 

Costs

There are no additional costs beyond normal legal costs associated with any other court application, such as counsel’s fees, disbursements and court fees.

10. What are the different steps of the proceedings?

Netherlands

Setting-aside proceedings are initiated before and decided by the appellate courts. The proceedings before the appellate court are generally administered in accordance with the civil procedure rules applicable to cases before the district courts, though under the time limits defined in the civil procedure rules for appellate courts.

Setting-aside proceedings commence with the claimant’s submission of a writ of summons, which must state the grounds for the setting-aside application. This is followed by the submission of a statement of defence by the respondent, including any defences the respondent wishes to raise against the setting-aside application. After this initial written round, the court of appeal will decide whether to immediately proceed with a hearing on the merits of the setting-aside application – which is the default procedure – or to proceed with a second round of written submissions (with a statement of reply by the claimant and a statement of rejoinder by the respondent) before ordering a hearing on the merits.

Hearings on the merits in setting-aside proceedings tend to be relatively brief, ranging from half a day to three days, depending on the complexity and size of the case file, and are generally limited to oral arguments. Examination of (expert) witnesses is very rare. Evidence of (expert) witnesses is most often taken in written form and submitted with – and considered in the same way as – any other documentary evidence submitted with the parties’ written submissions. After the hearing has taken place, the court will render a judgment.

11. May an arbitral award be recognised or enforced pending the setting- aside proceedings in your jurisdiction? Do setting aside proceedings have suspensive effect? If not, which court has jurisdiction over an application to stay the enforcement of the award pending the setting aside proceedings, and what are the different steps of the proceedings?

Netherlands

An application to set aside an arbitral award does not suspend its enforcement. However, a party to the setting-aside proceedings may make a specific request to the court of appeal hearing the setting-aside application to issue an order in the form of an interim measure that enforcement of the arbitral award be suspended until a final decision is rendered on the setting-aside application. A party seeking to suspend enforcement of an arbitral award may also apply to the Supreme Court if it is hearing a cassation appeal in respect of the setting-aside application.

The standard for an order to suspend enforcement of arbitral awards pending setting-aside proceedings has been developed in case law and generally consists of two cumulative requirements: first, that on a prima facie review, the application for setting aside the arbitral award is (very) likely to succeed; and second, that the interest of the award debtor, in suspension of enforcement, outweighs the interest of the award creditor in proceeding with enforcement of the arbitral award.

12. What are the grounds on which an arbitral award may be set aside?

Netherlands

An arbitral award may be set aside only on one or more of the following five grounds:

• absence of a valid arbitration agreement;
• the arbitral tribunal was composed in violation of the applicable rules;
• the arbitral tribunal violated its mandate;
• the award was not signed in accordance with the Dutch Code of Civil Procedure or it did not contain reasons; or
• the award, or the manner in which it was made, violates public policy.

13. What is the effect of the decision on the setting-aside application in your jurisdiction? What challenges are available?

Netherlands

A decision on a setting-aside application may take one of four forms. The court of appeal can:

• deny the application;
• grant the application in full and set aside the arbitral award;
• grant the application in part and partially set aside the arbitral award; or
• remit the arbitral award back to the arbitral tribunal to permit the arbitral tribunal to cure a potential deficit that could otherwise lead to partial or full setting aside.

Denial of the setting-aside application

If the court of appeal decides to reject the application for setting aside the arbitral award, the award will remain unaffected. An arbitral award has res judicata effect from the day it is rendered and retains its res judicata effect as long as it has not been set aside.

If the court of appeal had accepted a request for an interim measure to suspend enforcement of the arbitral award, the interim measure will be lifted.

Unless the parties have agreed to exclude Supreme Court review, the claimant in the setting-aside proceedings will be able to levy a cassation appeal to the Supreme Court. The Supreme Court’s cassation review is generally limited to matters of law and procedure. A cassation appeal to the Supreme Court will not suspend the enforcement of the arbitral award. A separate application can be made to the Supreme Court to issue, by way of an interim measure, a suspension of enforcement of the arbitral award pending the cassation appeal.

Full setting aside of the arbitral award

If the court of appeal decides to grant an application to set aside an arbitral award in full, the principle effect of this decision will be that the arbitral award no longer has res judicata effect.

Unless the parties have agreed otherwise, the losing party in the setting-aside proceedings will be able to levy a cassation appeal with the Supreme Court. In the event that the setting aside of the arbitral award is not appealed to the Supreme Court, or if a cassation appeal to the Supreme Court is unsuccessful, the setting-aside decision of the court of appeal will become irrevocable. This will have one of two consequences, depending on whether the setting aside of the arbitral award was based on the lack of a valid arbitration agreement or any of the other four grounds for setting aside an award.

Arbitral agreement no longer provides basis for new arbitration

If the court of appeal decides to set aside the arbitral award on the basis that no valid arbitration agreement exists, and this decision becomes irrevocable, this will revive the original jurisdiction of the competent state courts. In other words, a party to the dispute will not be able to initiate a new arbitration on the basis of the same (alleged) arbitral agreement. The question of which state court has jurisdiction over the dispute will have to be determined on the basis of applicable private international law.

Arbitral agreement continues to provide basis for new arbitration

If the court of appeal bases its decision to set aside the arbitral award on any of the other four grounds, the arbitral agreement will remain in force and a party to the dispute may initiate new arbitral proceedings on the basis of that same arbitral agreement.

Partial setting aside of the arbitral award

If the ground for setting aside the arbitral award concerns only a part of the award, the arbitral award will be set aside only insofar as that part is concerned, provided that the remainder of the award is not inextricably linked – in content and meaning – to the part that is to be set aside.

In the event of a partial setting aside of an arbitral award, the res judicata effect of the part of the award that is not set aside will remain unaffected, whereas the res judicata effect of the part that is set aside will cease. Unless the parties have agreed otherwise, either party will be able to levy a cassation appeal before the Supreme Court insofar as it is the losing party in the setting-aside proceedings before the court of appeal.

Remission

Where the court of appeal considers that a ground for setting aside an arbitral award may give rise to its partial or full setting aside, the court may decide, either at the request of a party or on own motion, to suspend the setting-aside proceedings for a period of time and remit the case back to the arbitral tribunal to enable it to undo the ground for setting aside the arbitral award. The arbitral tribunal – which can be either the original arbitral tribunal, or, if necessary, a new arbitral tribunal – may then take this opportunity to reopen the arbitral proceedings or take any (corrective) measures it considers appropriate. Upon continuation of the setting-aside proceedings, the court of appeal will proceed to decide on the (partial or full) setting aside of the arbitral award as it sees fit.

14. Will courts take into consideration decisions rendered in relation to the same arbitral award in other jurisdictions or give effect to them (eg, in recognition or enforcement proceedings)?

Netherlands

Dutch courts commonly take into consideration decisions in foreign judgments in the same matter. Courts may consider foreign judgments as evidence or they may give (preclusive) effect to decisions in foreign judgments, provided that they are capable of meeting the requirements to be recognised in the Netherlands either on the basis of applicable conventions or Dutch law on recognition of foreign judgments. Courts will take into account foreign judgments to the extent that the issues to be decided are not specific to Dutch legal grounds for setting aside an arbitral award (eg, whether the award, or the manner in which it was made, violates Dutch public policy).

15. What is the applicable procedural law for recognition and enforcement of an arbitral award in your jurisdiction? Is your jurisdiction party to treaties facilitating recognition and enforcement of arbitral awards?

Netherlands

For the purposes of enforcement, Dutch arbitration law distinguishes between domestic and foreign arbitral awards.

Domestic awards are enforced by means of a petition to the preliminary relief judge of the district court in whose judicial district the place of arbitration is located. The application can be filed and decided ex parte. A decision granting leave for enforcement (exequatur) is typically issued within one or two business days. The preliminary relief judge must grant leave if none of the grounds for refusal are present. A decision granting leave for enforcement is not subject to appeal, but a decision denying leave can be appealed. The period within which a domestic arbitral award can be enforced in the Netherlands is limited to 20 years under Dutch law.

Foreign awards require recognition in addition to leave for enforcement. For this purpose, the Dutch Arbitration Act distinguishes between awards recognised and enforced pursuant to an enforcement treaty, and awards recognised and enforced without the application of a treaty.

Recognition and enforcement based on a treaty

In respect of enforcement with an applicable treaty, the proceedings commence with the filing of a petition for leave to recognise and enforce a foreign award at the court of appeal. The application must be filed at the court of appeal in the district where enforcement is sought (ie, in the district where an asset of the award debtor is situated or where the award debtor is domiciled). The court of appeal must order a hearing before it decides on the request. The party against whom enforcement is sought must be summoned for the hearing by the party requesting enforcement through formal service of the court’s decision ordering a hearing. The court records its decision in a separate exequatur judgment that must contain reasoning. Unless the relevant enforcement treaty provides otherwise, both the applicant and the respondent can appeal to the Supreme Court within three months of the date of the decision. Such an appeal does not suspend the enforceability of the court of appeal’s exequatur, unless that court decided otherwise.

The Netherlands is a party to both the New York Convention and the ICSID Convention. The procedure applicable to New York Convention awards is largely the same as the procedure described above. A petition for leave to recognise and enforce an ICSID award must be made to the preliminary relief judge of the District Court of The Hague, which is the designated competent court for this procedure in the Netherlands, in accordance with the ICSID Convention.

Recognition and enforcement without a treaty

If no applicable treaty exists for the recognition and enforcement of a foreign award, or if a treaty is applicable but permits a party to seek recognition and enforcement pursuant to the law of the state where the enforcement is sought, a party can apply for recognition and enforcement of the award based exclusively on Dutch law, in accordance with the Dutch Arbitration Act. The proceedings are largely the same as those for an application based on a treaty.

16. Is the state a party to the 1958 New York Convention? If yes, what is the date of entry into force of the Convention? Was there any reservation made under article I(3) of the Convention?

Netherlands

The Netherlands has signed and ratified the New York Convention, effective on 24 April 1964. The only reservation made is the reciprocity reservation, in terms of which only awards from other contracting states will be enforced as per the Convention’s terms.

17. Is there a time limit for applying for the recognition and enforcement of an arbitral award?

Netherlands

Domestic awards

The right to enforce a domestic arbitral award generally lapses after 20 years. This period is effective as of the next day after the award is rendered, or the day after the condition is fulfilled, in the case of conditional awards. A shorter limitation period of five years applies to recurrent payments such as rent or interest payments. A period of six months applies to the enforcement of penalty payments, starting at the moment they become due. The limitation period for arbitral appeal or setting-aside proceedings starts the day after these proceedings end. The limitation period can be interrupted by service of the award on the award debtor, a written notice to the award debtor, acknowledgment by the award debtor of the obligation set out in the award, or by an act of enforcement with notice to the award debtor, such as the levying of an executory attachment. If the interruption is successful, a new limitation period will start after the interruption.

The court where enforcement of the award is sought will not examine ex officio whether any applicable limitation period has expired. For that reason, if the applicable limitation period has expired, it is up to the award debtor to raise this.

Foreign awards

Under Dutch law, there is no limitation period for the recognition and enforcement of foreign arbitral awards. The Supreme Court has held that the expiry of a statute of limitations under the law of the seat of arbitration does not constitute a ground to refuse recognition and enforcement of the award in the Netherlands.

18. Which court has jurisdiction over an application for recognition and enforcement of an arbitral award? Is there a specific court or chamber in place with specific sets of rules applicable to international arbitral awards?

Netherlands

A domestic arbitral award is fit to be recognised and enforced by the district court within whose judicial district the seat of the arbitration is located. In respect of foreign awards, the competent court is the court of appeal in the district in which enforcement is sought.

19. What are the requirements for the court to have jurisdiction over an application for recognition and enforcement and for the application to be admissible? Must the applicant identify assets within the jurisdiction of the court that will be the subject of enforcement for the purpose of recognition proceedings?

Netherlands

The competent court in the district within which the seat of arbitration is located will have jurisdiction in respect of enforcement of domestic awards.

Dutch courts have a general jurisdiction to enforce foreign arbitral awards. An application for leave to enforce a foreign award in the Netherlands, by its nature, is considered to be sufficiently closely connected to the Dutch legal order. The presence of assets in the state is not specifically required. This certainty of jurisdiction, coupled with liberal rules on levying ex parte prejudgment attachments and the fact that many companies and institutions are structured through Dutch entities, makes the Netherlands an attractive jurisdiction for the enforcement of arbitral awards.

20. Are the recognition proceedings in your jurisdiction adversarial or ex parte? What are the different steps of the proceedings?

Netherlands

A domestic arbitral award is enforced by proceedings before a single judge in the competent district court, typically handled on an ex parte basis. Enforcement proceedings of foreign arbitral awards are conducted in the first instance by the competent court of appeal in adversarial proceedings. The default procedure includes one round of written submissions and both parties being given an opportunity to address the court at a hearing. Further rounds of written submissions or an additional hearing may be ordered by the court. This usually happens only at the request of a party and in especially complex cases. As a matter of practice, hearings do not include the taking of (expert) witness testimony, although the court in principle has discretion to take evidence in the form of oral testimony. This evidence is normally taken in written form. In exceptional cases where (expert) witnesses are heard in court, the general practice is for the court to conduct the examination of the (expert) witness and for the parties either to submit questions for the (expert) witness to the court, or to be granted very limited opportunity to put their own questions to the (expert) witness.

21. What documentation is required to obtain recognition?

Netherlands

The Dutch Code of Civil Procedure requires at least an authenticated copy of the award to be produced to the relevant court for enforcement of domestic awards. For foreign arbitral awards, the Dutch Code of Civil Procedure and the New York Convention require the original arbitration agreement and the original arbitral award, or duly certified copies of these documents, to be produced to the relevant court. In respect of ICSID awards, an authentic copy of the award signed by the Secretary General of ICSID must be furnished.

22. If the required documentation is drafted in a language other than the official language of your jurisdiction, is it necessary to submit a translation with an application to obtain recognition? If yes, in what form must the translation be?

Netherlands

In practice, Dutch courts will accept awards rendered in English and possibly in French or German. Although the New York Convention requires translation of an award into the official language of the country in which enforcement of an award is sought, Dutch courts usually adopt a pragmatic approach in this respect. There are court decisions finding that the translation requirement is not to be enforced if the arbitral award is in a language understood by both the party defending against the request for leave and the court. There is no requirement that an ICSID award be translated into Dutch.

23. What are the other practical requirements relating to recognition and enforcement? Are there any limitations on the language and length of the submissions and of the documentation filed by the parties?

Netherlands

Length of submissions

New page limits are applicable to submissions in appellate court cases commenced as of 1 April 2021. Pursuant to this new regulation, a limit of 25 pages would apply to any writ of summons for the setting aside of arbitral awards, and any statement of defence filed in response. A limit of 15 pages would apply to any subsequent submission. The regulation includes specific formatting specifications for written submissions – including fonts, font sizes and margins – to ensure uniformity. The announced page limit restriction has led to complaints from the Netherlands Bar Association on the grounds that this regulation lacks foundation in law and that it places undue restrictions on litigants’ fundamental procedural rights, including their right to be heard and right to due process. Following consideration of such complaints, in December 2021 the Advocate General issued a preliminary ruling that, while the limit of 25 pages is admissible and does not violate a party's right access to justice, a procedural document longer than the page limit may not automatically be rejected in its entirety as there may be circumstances in which a longer submission is necessary. Whether longer documents are permissible must be determined in each case. 

Language

Proceedings in Dutch courts are conducted in Dutch and, thus, written and oral submissions of the parties must be delivered in Dutch.

Costs

There are no additional costs beyond normal legal costs associated with any other court application, such as counsel’s fees, disbursements and court fees.

24. Do courts recognise and enforce partial or interim awards?

Netherlands

An award deciding on interim measures, whether qualifying as an interim award or as a partial final award, is, in principle, enforceable in the same manner as an arbitral award on the merits.

25. What are the grounds on which an arbitral award may be refused recognition? Are the grounds applied by the courts different from those provided under article V of the New York Convention?

Netherlands

In the absence of an applicable treaty concerning recognition and enforcement, the grounds for refusal as contained in the Dutch Arbitration Act apply. The grounds closely resemble those in the New York Convention, namely:

• there is no valid arbitration agreement under the law applicable to the arbitration agreement;
• the tribunal was constituted in violation of the applicable rules;
• the tribunal violated its mandate;
• the award is open to appeal to another arbitral tribunal or court in the country where the award was made;
• the arbitral award has been set aside by a competent authority of the country where the award was made; or
• recognition or enforcement would be contrary to public policy.

26. What is the effect of a decision recognising an arbitral award in your jurisdiction?

Netherlands

Both domestic arbitral awards and foreign awards become enforceable only after leave for enforcement (exequatur) has been granted by the relevant court. Once exequatur has been granted, the arbitral award can be enforced in the Netherlands in the same manner as an enforceable state court judgment.

A decision granting leave to enforce a domestic arbitral award cannot be appealed. If leave for enforcement is granted, an application to set aside or revoke the award is the means of recourse available to the award debtor. The setting aside or revocation of an award by operation of law results in the annulment of any leave granted for the enforcement of that award. The commencement of setting-aside or revocation proceedings of the domestic award does not suspend the enforcement of an award, nor does it suspend the effect of the leave to enforce. However, the court of appeal deciding on the application to set aside or revoke an award can, on application of a party, suspend the enforcement even if leave to enforce the award has been granted. When reviewing a request for suspension of enforcement, the court generally considers two cumulative requirements that must be met for the request to succeed: first, it must be probable that the award will be set aside; and second, the interest of the award debtor to delay enforcement must outweigh the interest of the award creditor in proceeding with the enforcement.

The decision to deny leave for enforcement of a domestic award can be appealed to the court of appeal within three months of the date of the decision. If, on appeal, the application is again denied, the applicant can file a cassation appeal with the Supreme Court within three months of the date of the court of appeal’s decision. If the court of appeal or the Supreme Court grants leave to enforce the award, that decision cannot be appealed.

A court decision granting recognition and leave for enforcement of a foreign award in principle cannot be appealed to the Supreme Court if granted for an award of which the recognition and enforcement is governed by a treaty (such as the New York Convention). It is permissible to appeal to the Supreme Court a decision denying leave to enforce a New York Convention award, as is the case for domestic awards.

If enforcement of a foreign award is not governed by a treaty (such as the New York Convention), both the applicant and the respondent can appeal the decision granting recognition and leave for enforcement to the Supreme Court within three months of the date of the decision. The appeal does not suspend the enforceability of the court of appeal’s exequatur, unless the court decides otherwise.

27. What challenges are available against a decision refusing recognition in your jurisdiction?

Netherlands

In the case of domestic arbitral awards for which there is no applicable treaty on recognition and enforcement, the Dutch Code of Civil Procedure provides for an appeal process only if recognition is refused. If this is the case, the party may apply to the competent court of appeal. If the appeal is unsuccessful, a cassation appeal can be filed with the Supreme Court.

In respect of recognition based on the New York Convention, the Dutch Supreme Court has ruled that there is no right of appeal against a decision granting leave to enforce an award in terms of the Convention. In the case of a foreign award where the New York Convention is not applicable, and unless the relevant enforcement treaty provides otherwise, both the applicant and the respondent can appeal to the Supreme Court following a decision either refusing recognition or granting leave for enforcement.

28. What are the effects of annulment proceedings at the seat of the arbitration on recognition or enforcement proceedings in your jurisdiction?

Netherlands

The enforcement of an arbitral award is not automatically suspended by an application for the setting aside of the arbitral award. In terms of the Dutch Arbitration Act, upon request by a party, and if there are good grounds for doing so, the court may suspend enforcement of the award until a final decision on the application for setting aside has been made.

Similarly, in respect of foreign awards for which there is no applicable enforcement treaty, the court of appeal may suspend its decision on the recognition and enforcement if proceedings to set aside the award have been initiated in the state where the award was rendered. Dutch courts also abide by the provisions of applicable treaties in this regard, for example, Article VI of the New York Convention, which provides for a court to suspend recognition or enforcement proceedings if a setting-aside application has been made before the court at the seat of arbitration.

When reviewing a request for suspension of enforcement, the court generally considers two cumulative requirements that must be met for the request to succeed: first, it must be probable that the award will be set aside; and second, the interest of the award debtor to delay enforcement must outweigh the interest of the award creditor in proceeding with the enforcement.

29. If the courts adjourn the recognition or enforcement proceedings pending annulment proceedings, will the defendant to the recognition or enforcement proceedings be ordered to post security?

Netherlands

In the event that recognition and enforcement proceedings are suspended pending the outcome of an application for setting aside, the Dutch Arbitration Act permits the court to order the party seeking suspension to provide security. Conversely, if the request for suspension is denied, the court may order the party seeking enforcement to provide security.

In nuanced cases, the Dutch courts have been willing to consider suspending their decisions on recognition and enforcement subject to the provision of suitable security. Courts generally adopt a strict test requiring that the provision of security is absolutely necessary, for example, if there is a high risk of non-fulfilment of the award. The common form of security provided is a bank guarantee from a reputable bank covering the value of the claim and applicable legal interest.

30. Is it possible to obtain the recognition and enforcement of an award that has been fully or partly set aside at the seat of the arbitration? If an arbitral award is set aside after the decision recognising the award has been issued, what challenges are available?

Netherlands

An award that was set aside at the seat of arbitration may still be recognised and enforced in the Netherlands. Although the Dutch Arbitration Act provides that an award that has been set aside at the seat is a ground for refusing recognition and enforcement, the Supreme Court has indicated that this does not automatically preclude Dutch courts from recognising an award. An award may be recognised in the Netherlands in exceptional circumstances if, for example, the award has been set aside on grounds other than those set out in the Dutch Arbitration Act and that are not internationally accepted.

The approach of the courts is similar in New York Convention cases. The Dutch courts are required to grant leave for the recognition and enforcement of a foreign arbitral award under the Convention, unless a ground for refusal under Article V(1) applies. However, even if such a ground for refusal applies, the court nevertheless has discretion to grant leave for recognition and enforcement, which may be applied in special circumstances.

A special circumstance exists if the award was set aside in foreign proceedings on grounds that do not match with those in Article V(1), Paragraphs (a) to (d) of the New York Convention, and grounds that are not generally accepted according to international standards. A special circumstance also exists if the decision rendered in the foreign setting-aside proceedings cannot be recognised in the Netherlands, on the grounds that one or more of the requirements for the recognition and enforcement of a foreign decision under Dutch private international law have not been fulfilled.

The party seeking recognition and enforcement has the burden of asserting and proving facts and circumstances that justify granting leave for recognition and enforcement despite a ground for refusal being applicable.

31. What is the procedure for service of extrajudicial and judicial documents to a defendant in your jurisdiction? If the extrajudicial and judicial documents are drafted in a language other than the official language of your jurisdiction, is it necessary to serve these documents with a translation?

Netherlands

Service of any applications, writs of summons and judgments or exequaturs are ordinarily effected through the Dutch bailiff, instructed by the applicant or award creditor as the case may be. Service is usually effected at the respondent’s domicile, which may also be the offices of the respondent’s counsel, if nominated. However, in light of some recognition and enforcement proceedings being ex parte proceedings, service in this manner will not always be required.

Under Dutch law there is no requirement that the documents served be translated, nor is translation required if the documents served in the Netherlands are from a state that has ratified the 1965 Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. However, a translation into Dutch would be advisable as omission of a translation can be a ground for the Dutch local bailiffs to refuse service, which can lead to service having to be conducted again.

If the documents are served out of a fellow EU Member State, service will be governed by Regulation (EC) No. 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents). Under this Regulation, the addressee can refuse service of the document if it is not translated into a language the addressee understands or an official language of the Member State addressed.

32. What is the procedure for service of extrajudicial and judicial documents to a defendant outside your jurisdiction? Is it necessary to serve these documents with a translation in the language of this jurisdiction? Is your jurisdiction a party to the 1965 Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Hague Service Convention)? Is your jurisdiction a party to other treaties on the same subject matter?

Netherlands

The 1965 Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the Hague Service Convention) and Regulation (EC) No. 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents) regulate service of judicial documents in EU Member States. If service is to be effected in a state that is not a member of the European Union or not a signatory to the Hague Service Convention, service is regulated by the Dutch Code of Civil Procedure. In such a case, the court bailiff must send the document by registered post to the foreign address and present the document to the office of the public prosecutor in the relevant district of the competent court. The public prosecutor must provide the document to the Dutch Ministry of Foreign Affairs, which must then give notice to the foreign respondent.

If the documents are served under the Hague Service Convention, it is advisable to translate them. Even though the language of article 5 of the Convention does not require a compulsory translation – stating that ‘the Central Authority may require translation’ – most of the states that have ratified the Convention (with rare exceptions, such as the Netherlands, Israel and Italy) will require a translation to an official language of the state addressed.

If service of documents is to defendants in EU Member States, it is also advisable to provide a translation into a language the addressee understands or an official language of the state addressed. The omission of translation allows the addressee to refuse to accept the documents.

If service is regulated by the Dutch Code of Civil Procedure, Dutch law does not contain any translation requirements.

33. Are there any databases or publicly available registers allowing the identification of an award debtor’s assets within your jurisdiction? Are there any databases or publicly available registers providing information on award debtors’ interests in other companies?

Netherlands

A number of databases and registers allow for the identification of assets in the Netherlands, including:

• the land registry (Kadaster), which facilitates a database of real estate and includes information about ownership, mortgages, value of properties and legal attachments;
• the vessel register and database, which is supported on the Kadaster website;
• the aircraft register;
• the patent register;
• the Benelux Office of Intellectual Property, including information on trademarks; and
• the trade register (KvK), which includes content on corporate entities registered in the Netherlands, such as directorship, financial reports and shareholdings.

In addition, under new European legislation, the Netherlands has implemented a UBO register, identifying the ultimate beneficial owner of legal entities. The UBO register forms part of the Dutch trade register.

34. Are there any proceedings allowing for the disclosure of information about an award debtor within your jurisdiction?

Netherlands

Dutch law does not provide for specific legal proceedings in respect of asset disclosure, or a specific obligation for an award debtor to disclose its assets.

There are however a number of databases and registers that allow for the identification of assets in the Netherlands, including:

• the land registry (Kadaster), which facilitates a database of real estate and includes information about ownership, mortgages, value of properties and legal attachments;
• the vessel register and database, which is supported on the Kadaster website;
• the aircraft register;
• the patent register;
• the Benelux Office of Intellectual Property, including information on trademarks; and
• the trade register (KvK), which includes content on corporate entities registered in the Netherlands, such as directorship, financial reports and shareholdings.

In addition, under new European legislation, the Netherlands has implemented a UBO register, identifying the ultimate beneficial owner of legal entities. The UBO register forms part of the Dutch trade register

35. What kinds of assets can be attached within your jurisdiction?

Netherlands

In principle, any assets that belong to the debtor can be the subject of a prejudgment attachment. These assets include, among others, money on a bank account (in a form of third-party attachment), movable property and bearer shares, shares in a (private or public) company and securities, assets held by a third party (but owned by the debtor), immovable property, vessels and airplanes.

36. Are interim measures against assets available in your jurisdiction?

Netherlands

An award creditor may obtain a prejudgment attachment against assets of an award debtor pending, or prior to commencing, exequatur proceedings. The purpose of such an attachment is to secure assets sought to be recovered upon enforcement that are at risk of being disposed of, or alienated by, an award debtor before enforcement. In general, the attachment regime in the Netherlands is liberal and award creditor-friendly.

A prejudgment attachment may be obtained against assets of a sovereign state that are not protected by sovereign immunity from enforcement measures. The Netherlands recognises parts of the 2004 UN Convention on Jurisdictional Immunities of States and Their Property as a reflection of customary international law that governs the question of which assets may be subjected to post-judgment attachment as well as prejudgment attachment.

37. What is the procedure to apply interim measures against assets in your jurisdiction?

Netherlands

To levy prejudgment attachment against assets of an award debtor, an award creditor must obtain leave for attachment from the preliminary relief judge of the district court where the assets are located or where the award debtor is domiciled. The petition for leave must include the claim of the award creditor and the nature of the attachment to be levied. The petition for leave to attach assets may be done ex parte and leave is customarily granted within a matter of days. After obtaining leave to attach assets, the attachment is effected through instruction to a bailiff, who levies the attachment through service of an attachment order.

38. What is the procedure for interim measures against immovable property within your jurisdiction?

Netherlands

After obtaining an attachment order from the court, attachment of immovable property is effected by instructing a bailiff to serve the attachment order and registration of the attachment order in the public registry for immovable property. Sale of the property may not be permitted during the prejudgment process prior to a final decision on the enforcement proceedings.

39. What is the procedure for interim measures against movable property within your jurisdiction?

Netherlands

After obtaining an attachment order from the competent court, attachment of movable property is effected by instructing a bailiff to serve the attachment order and seizing the property. If the movable property is registered in a public registry (e.g., a ship or airplane), the attachment order will also be registered in the public registry. Sale of the property may not be permitted during the prejudgment process prior to a final decision on enforcement proceedings.

40. What is the procedure for interim measures against intangible property within your jurisdiction?

Netherlands

After obtaining an attachment order from the court, attachment of intangible property is effected by instructing a bailiff to serve the attachment order. If the intangible property is registered in a public registry, the attachment order will also be registered in the public registry. Sale of the property may not be permitted during the prejudgment process prior to a final decision on enforcement proceedings.

41. What is the procedure to attach assets in your jurisdiction?

Netherlands

Before enforcing an arbitral award through attachment of assets, an award creditor must obtain leave to levy an attachment (exequatur) from the competent Dutch court. An exequatur can generally be obtained ex parte in a few working days. The threshold is relatively low (essentially, whether the creditor has a prima facie claim against the debtor). After obtaining an exequatur, attachments may be levied against the award debtor’s assets through a direct instruction to a court bailiff in accordance with the Dutch Code of Civil Procedure.

42. What is the procedure for enforcement measures against immovable property within your jurisdiction?

Netherlands

The procedures for enforcement against immovable property are set out in the Dutch Code of Civil Procedure. Prior to attachment of immovable property belonging to an award debtor, an award creditor must instruct a bailiff to serve a payment order on the award debtor, including a summons for the debtor to complete payment under the award within two days. After this term, attachment may be levied by the bailiff through an attachment order that is entered on the public registry for immovable property. In the event that the immovable property is under mortgage, the award debtor must inform the mortgage holder of the attachment. The immovable property is sold at auction by a notary public who is designated by the award creditor (either in the attachment order served on the award debtor or in a later order served on the award debtor). An auction of immovable property must be announced on the internet at least 30 days before the date of the auction. The designated notary public will take payment for the immovable property, pay the sums due to the award creditor and return any residual funds to the award debtor.

43. What is the procedure for enforcement measures against movable property within your jurisdiction?

Netherlands

For movable property that is required by law to be registered in public registries, the procedure is similar to that of immovable property. Prior to attachment of the movable property belonging to an award debtor, an award creditor must instruct a bailiff to serve a payment order on the award debtor, including a summons for the debtor to complete payment under the award within 24 hours. After this term, attachment may be levied by the bailiff through an attachment order that is entered on the public registry for the movable property. The movable property is sold at auction by a notary public designated by the award creditor (either in the attachment order served on the award debtor or in a later order served on the award debtor). An auction must be announced on the internet in advance. This notice must be given two to six weeks prior to the auction, depending on the type of property. The designated notary public will take payment for the property, pay the sums due to the award creditor and return any residual funds to the award debtor.

For other movable property (i.e., that is not required by law to be registered in a public registry), attachment is effected through direct instruction of a bailiff who will, after serving a payment order with a summons to pay the awarded sum within two days, seize the property and sell it or, if the property is liquid, pay out to the award creditor.

Selling off registered shares in a (public or private) company requires prior leave to be obtained from the district court where the company is located. The district court will summon the bailiff, the award creditor, the award debtor, the company and any interested party (such as other parties with an attachment on the shares) before issuing a decision on the request for leave.

44. What is the procedure for enforcement measures against intangible property within your jurisdiction?

Netherlands

The procedure for movable property also applies to intangible property. For intangible property that is required by law to be registered in public registries, the procedure is similar to that for immovable property and movable property required by law to be registered in public registries. Prior to attachment of intangible property belonging to an award debtor, an award creditor must instruct a bailiff to serve a payment order on the award debtor, including a summons for the debtor to complete payment under the award within 24 hours. After this term, attachment may be levied by the bailiff through an attachment order that is entered on the public registry for the intangible property. The property is sold at auction by a notary public designated by the award creditor (either in the attachment order served on the award debtor or in a later order served on the award debtor). An auction must be announced on the internet in advance. This notice must be given two to six weeks prior to the auction, depending on the type of property. The designated notary public will take payment for the property, pay the sums due to the award creditor and return any residual funds to the award debtor.

For other intangible property (ie, that is not required by law to be registered in a public registry), attachment is effected through direct instruction of a bailiff who will, after serving a payment order with a summons to pay the awarded sum within two days, seize the property and sell it or, if the property is liquid, pay out to the award creditor. Selling off registered shares in a (public or private) company requires prior leave to be obtained from the district court where the company is located. The district court will summon the bailiff, the award creditor, the award debtor, the company and any interested party (such as other parties with an attachment on the shares) before issuing a decision on the request for leave.

45. Are there specific rules applicable to the attachment of assets held by banks? Is it possible to attach in your jurisdiction sums deposited in bank accounts opened in a branch or subsidiary of a foreign bank located in your jurisdiction or abroad? Is it possible to attach in your jurisdiction the bank accounts opened in a branch or subsidiary of a domestic bank located abroad?

Netherlands

A debtor’s bank account can generally be attached in the Netherlands if the debt is payable at a branch or subsidiary located in the Netherlands. Such an attachment is levied in the form of a third-party attachment. This is effected through service of an attachment order obtained from the court on the third party (ie, any branch or subsidiary of the bank located in the Netherlands), with subsequent service of a copy of the attachment order on the debtor. Such third-party attachment can result in the handover of the assets to the bailiff and sale of the assets in accordance with the Dutch Code of Civil Procedure, with the ultimate transfer of the sum to the bank account of the award creditor. 

46. Are there any rules in your jurisdiction that specifically govern recognition and enforcement of arbitral awards against foreign states?

Netherlands

When enforcing an investment arbitration award against a foreign state in the Netherlands, Dutch law on immunity from execution applies. Although the Netherlands is not a signatory, the Supreme Court has endorsed certain parts of the 2004 UN Convention on Jurisdictional Immunities of States and Their Property as reflecting customary international law, in particular articles 19 and 21 thereof, which set out exceptions to the general rule of sovereign immunity in respect of post-judgment attachments. However, the Supreme Court has indicated that article 18 of the Convention, which contains strict prejudgment attachment provisions, is not reflective of customary international law.

47. What is the procedure for service of extrajudicial and judicial documents to a foreign state? Is it necessary to serve extrajudicial and judicial documents with a translation in the language of the foreign state?

Netherlands

For signatory states, the 1972 European Convention on State Immunity will apply to service on foreign states. Judicial process must be provided to the Ministry of Foreign Affairs of the respondent state, which then distributes it to the competent authority for that state. The documents served must be accompanied, ‘if necessary’, by a translation into an official language of the respondent state. The Netherlands has ratified the 1972 Convention.

If the foreign state is not a signatory to the 1972 Convention, service is effected in accordance with the Dutch Code of Civil Procedure, in the same manner as for non-signatory states. For the purposes of service on a foreign state, the domicile is usually considered to be the office of the Minister of Foreign Affairs in that state’s capital city. The Dutch Code of Civil Procedure does not provide for specific requirements regarding the translation of the documents.

48. May a foreign state invoke sovereign immunity (immunity from jurisdiction) to object to the recognition or enforcement of arbitral awards?

Netherlands

Although the Netherlands is not a signatory, the Supreme Court has held generally that the 2004 UN Convention on Jurisdictional Immunities of States and Their Property is reflective of customary international law to be applied by the Dutch courts, in particular articles 19 and 21 thereof, which set out exceptions to the general rule of sovereign immunity in respect of post-judgment attachments. The Supreme Court has not specifically ruled on article 17 of the 2004 Convention. Article 17 provides that if a state has concluded a written arbitration agreement with a foreign natural or juridical person to submit a dispute relating to commercial transactions (including investment matters) to arbitration, the state cannot invoke immunity from jurisdiction before a competent state court in proceedings relating to:

• the validity, interpretation or application of the arbitration agreement;
• the arbitration procedure;
• or the confirmation or setting aside of the award,

unless the arbitration agreement provides otherwise.

Accordingly, subject to the terms of the applicable written arbitration agreement, a state cannot object to the Dutch State courts' jurisdiction to hear an application for the recognition, enforcement, revocation or setting aside of an award, or an application relating to the arbitration agreement or arbitral procedure, on the basis of (sovereign) immunity from jurisdiction.

49. May award creditors apply interim measures against assets owned by a sovereign state?

Netherlands

The Supreme Court does not consider article 18 of the 2004 UN Convention on Jurisdictional Immunities of States and Their Property, which governs prejudgment attachments, to be reflective of customary international law. Instead, the Supreme Court has held that the regime for post-judgment attachments set out in article 19 is reflective of customary international law and applies in relation to prejudgment and post-judgment attachments. Accordingly, prejudgment attachments on assets owned by a sovereign state are permissible if it has been established by the award creditor that the exception included in article 19 applies.

50. Are assets belonging to a foreign state immune from enforcement in your jurisdiction? Are there exceptions to immunity?

Netherlands

The general principle following from Dutch case law on sovereign immunity is that the property of foreign states is not susceptible to attachment and execution unless the creditor establishes that the exception included in article 19 of the 2004 UN Convention on Jurisdictional Immunities of States and Their Property applies. According to the Dutch Supreme Court, this provision reflects customary international law. Under this regime, exceptions to immunity exist if:

• the foreign state has expressly consented to enforcement measures;
• the foreign state has designated or reserved property to satisfy the claim; or
• it has been established that the property is used, or intended to be used, by the state for purposes other than non-commercial government purposes.

The burden of proof with respect to suitability for attachment of the property rests on the award creditor seeking attachment.

51. Is it possible for a foreign state to waive immunity from enforcement in your jurisdiction? What are the requirements of waiver?

Netherlands

It is possible for a foreign state to waive immunity from enforcement. The Dutch Supreme Court has confirmed that a waiver of immunity must be explicit and specific; it cannot be implied from the provisions of the relevant arbitration agreement.

Although the Netherlands is not a signatory, the Supreme Court has held generally that the 2004 UN Convention on Jurisdictional Immunities of States and Their Property is reflective of customary international law to be applied by the Dutch Courts, in particular articles 19 and 21 thereof, which set out exceptions to the general rule of sovereign immunity in respect of post-judgment attachments. The Supreme Court has not specifically ruled on article 17 of the 2004 Convention. Article 17 provides that if a state has concluded a written arbitration agreement with a foreign natural or juridical person to submit a dispute relating to commercial transactions (including investment matters) to arbitration, the state cannot invoke immunity from jurisdiction before a competent state court in proceedings relating to:

• the validity, interpretation or application of the arbitration agreement;
• the arbitration procedure;
• or the confirmation or setting aside of the award,

unless the arbitration agreement provides otherwise.

It follows that if a state concludes an agreement to submit disputes arising from commercial transactions (including investment matters) to arbitration, such state could be considered to have waived its immunity from jurisdiction in respect of arbitration-related disputes that come before Dutch courts, unless the arbitration agreement provides otherwise.

52. Is it possible for a creditor of an award rendered against a foreign state to attach the assets held by an alter ego of the foreign state within your jurisdiction?

Netherlands

Dutch case law suggests that attachment of the assets of an alter ego of a foreign state may be accepted by Dutch courts in certain circumstances.