Legal difficulties in the Netherlands
If you are experiencing legal difficulties in the Netherlands and are seeking a lawyer, then you have come to the right place. We are experienced lawyers who frequently act on behalf of foreign clients. We assist them in proceedings in the Netherlands and elsewhere. If you have been summonsed to appear in legal proceedings in the Netherlands, please call us on +31 (0)20 740 0521. We will provide you with prompt, expert assistance.
Below is a brief summary of the essential aspects of international private law in the Netherlands.
Vol. 10 of the Dutch Civil Code
Vol. 10 of the Dutch Civil Code represents the codification of Dutch international private law. A referral to the applicable law occurs through the so-called conflict of laws. An examination must be made of the nature of the relevant international agreement to determine which law governs that agreement. However, the provisions of Vol. 10 of the Dutch Civil Code will not apply to the extent that a specific agreement is governed by a treaty or an EU regulation.
A court of law’s jurisdiction
In order to hear an international dispute a court of law must enjoy jurisdiction to do so. The main rule is that a Dutch court of law enjoys jurisdiction provided that the defendant’s place of residence or normal abode is situated in the Netherlands. A court of law will also enjoy jurisdiction where the parties agree to this in the form of an international agreement (the so-called choice of forum) or if a contract provides specific grounds for accepting Dutch jurisdiction.
Choice of forum
The parties to an agreement may stipulate in it that a specific court of law enjoys jurisdiction to hear a dispute, the so-called choice of forum. If a choice of forum is to be legally valid, specific conditions must be satisfied, such as the stipulation of such choice of forum in writing. A clause in the general terms and conditions governing an international agreement may also suffice. Stipulating a choice of forum is strongly recommended in international contract law, so as to ensure that jurisdiction is not contested and complex foreign legal proceedings can be avoided.
Jurisdiction within the EU
The Judgments Regulation (EU Regulation No. 1215/2012) applies in relation to international agreements within the EU. In many cases it may be possible to determine which court of law in a particular member state enjoys jurisdiction in accordance with the relevant conflict-of-law rules. In brief, such rules entail that a court of law in the member state in which the defendant is domiciled enjoys jurisdiction to hear a dispute. This also applies if the defendant is not a national of the relevant member state. In this case too the parties may themselves agree that a specific court of law will have jurisdiction by stipulating a choice of forum in the relevant agreement, provided that this occurs lawfully.
The law that is to be applied within the EU
Any commercial contract which is concluded within the EU is governed by the so-called Rome I EU regulation. It follows from the Rome I Regulation that an agreement is governed by the law which the parties have decided on. Such a choice of applicable law must occur explicitly or it must be clearly evident from the provisions of the relevant agreement. Where no choice of law is stipulated in an agreement, a determination must be made as to which law is applicable on the basis of various indications. In accordance with the Rome I Regulation the main rule is that the applicable law is that of the country of the party that effects the most typical performance. Based on this jurisdiction rule the applicable law will therefore depend on the nature and type of the agreement which has been concluded.
Applicable law pursuant to choice of law
Nevertheless, the parties may themselves stipulate which law governs their agreement by stipulating a choice of law irrespective of whether they are domiciled in the EU or elsewhere. Such a choice of applicable law must occur explicitly or it must be clearly evident from the provisions of the relevant agreement. A choice of law may also be stipulated in the general terms and conditions governing the relevant agreement.
The Vienna Sales Convention (CISG) 1980
International trade agreements providing for the sale of goods are governed by the UN Convention on the International Sale of Goods (CISG), also known as the Vienna Sales Convention. Numerous countries throughout the world are party to the Vienna Sales Convention. This convention regulates the international sale of goods and any dispute which may arise pursuant to international trade, such as an application seeking compliance with a purchase agreement or the annulment of a contract as a result of default of performance.
General terms and conditions
A choice of forum and law is often stipulated in the general terms and conditions governing an international agreement. Under Dutch law an international agreement is governed by the general terms and conditions of the party that first declares them to be applicable.
Execution of a foreign judgment
A judgment handed down by a foreign court of law may not simply be executed in the Netherlands. This may only occur if permitted pursuant to a treaty or EU legislation. If this is not the case, new proceedings must be instituted before a Dutch court of law seeking leave to execute the relevant foreign judgment.
Execution of a European judgment within the EU
The European Judgments Regulation (EU Regulation No. 1215/2012) applies in relation to the execution of a European judgment within the EU. This regulation stipulates that a judicial ruling handed down in an EU member state will be recognised by the other member states without the need for special legal proceedings for that purpose.
Expedited, simplified proceedings within the EU
Various procedures are available within the EU to expedite and simplify the enforcement or execution of a judgment, such as the European order for payment (EOP), the European enforcement order (EEO), the European small claims procedure or to apply for protective measures, such as the European account preservation order (EAPO).
Execution of a foreign judgment
Availing oneself of Section 431(2) of the Rv [Code of Civil Procedure], a foreign judicial ruling which may not be enforced directly in the Netherlands may again be brought before a Dutch court of law. In this case the Dutch court of law is required to assess whether and to what extent it will accord authority to such a foreign judicial ruling.
If you have any questions concerning international contract law and jurisdiction, the law governing an international agreement or the cross-border execution of a judgment, please feel free to contact our lawyer specialising in international contract law on +31 (0) 740 0521. We look forward to helping you further.