Turkish Law Blog

How to Enforce Turkish Judgements in the Netherlands

Jilles van Zinderen Jilles van Zinderen/ Manz Legal
19 January, 2019
603

Once a party has successfully obtained a positive judgement in Turkey, in most cases this party shall desire to enforce the judgement. But what if the properties of the losing party are not in Turkey but in the Netherlands? Can the Turkish judgement be used for enforcement in the Netherlands?

Enforceable judgments:

Which types of Turkish judgments are suitable for recognition and enforcement in the Netherlands?

Article 431 of the Dutch Code of Civil Procedure (CCP) applies only to condemnatory judgments, which are enforceable. Constitutive judgments, declaratory judgments and judgments dismissing a claim fall outside the scope of this article. However, according to case law, the judge may attach his  own conclusion on the law applicable to these judgments and will recognise such judgments if they comply with the conditions set out below.

Turkish judgments that are still subject to appeal are in principle recognisable and enforceable in the Netherlands, provided that the formal and substantive requirements are fulfilled. The Dutch court has a broad discretion in this respect. 

Formal requirements:

What are the formal requirements for recognition and enforcement of Turkish judgments in the Netherlands?

The procedure in article 431, paragraph 2 of the CCP does not formally entail recognition or enforcement of a Turkish court judgment. However, in practice it gives a binding effect to Turkish court judgments in the Netherlands. This procedure can be used to initiate new simplified proceedings in the Netherlands, to achieve the same outcome as the Turkish judgment without review of its merits. The proceeding before the Dutch court is initiated by regular summons. An authenticated copy of the Turkish judgment and a legal opinion confirming enforceability of the judgment in Turkey are usually sufficient in terms of evidence. The court may require those documents to be legalised and translated into Dutch by a sworn translator.

Substantive requirements:

What substantive requirements apply to the recognition and enforcement of Turkish judgments? Is the Dutch court permitted to review the Turkish judgment on its merits?

A Turkish judgment is eligible for recognition and enforcement if:

  • The competence of the court issuing the judgment is grounded in competency principles that are generally accepted under international standards;
  • Principles of due process were not violated in the proceedings that resulted in the Turkish judgment;
  • The Turkish judgment was rendered in judicial proceedings that meet the requirements of and include safeguards for the proper administration of justice;
  • The recognition of the Turkish judgment does not contravene Dutch public order;
  • The Turkish judgment is reconcilable with any judgment rendered by a court in a matter between the same parties or with any earlier judgment by a Turkish court in a matter between those same parties in a dispute regarding the same issue and the same cause, if such earlier judgment is eligible for recognition in the Netherlands;
  • The Turkish judgment is by its terms still enforceable, and;
  • The Turkish judgment has not yet been satisfied.

If this is all the case, the Dutch court will render a similar decision as the Turkish court did, and that decision – as a Dutch decision – will be enforceable in the Netherlands. If the requirements are not met, the claim has to be re-litigated.

Limitation period:

What is the limitation period for the enforcement of a Turkish judgment?

In the Dutch Gazprombank case (ECLI:NL:HR:2014:2838) the Dutch Supreme Court held that expiry of leave to enforce in and under the laws of the country of origin would not prevent recognition and enforcement in the Netherlands of that foreign judgment. This means that the foreign statute of limitations has no consequences for the recognition and enforcement in the Netherlands of a foreign judgment.

The limitation period for a Dutch court to enforce a judgment is twenty years.

Service of process:

To what extent does the enforcing court review the service of process in the original Turkish proceedings?

If a judgment was given in default, the recognition or enforcement will be refused if the defendant was not served with the document which instituted the proceedings, or with an equivalent document in sufficient time and in such a way as to enable it to arrange a defence, unless the defendant failed to commence proceedings to challenge the judgment when it was possible for it to do so.

Public policy:

Are there any public policy issues that are considered in the Dutch court’s decision to grant recognition and enforcement?

A Turkish judgment is considered to be in violation of Dutch public policy if fundamental principles of law have been violated. This can be a violation of mandatory EU law, European Convention on Human Rights rules or fundamental principles of due process. In general a violation of public policy may be only assumed in exceptional situations.

Jurisdiction:

To what extent can the Dutch court review the personal and subject-matter jurisdiction of the Turkish court that issued the judgment?

The Turkish court’s jurisdiction may not be reviewed. Judgments from Turkey will not be enforced by the court if these judgments are not based on an internationally recognised ground for jurisdiction. In such cases, the specific basis under which the court of origin has assumed jurisdiction is irrelevant. It is relevant whether the elements of the case would provide jurisdiction on internationally recognised grounds.

Concurrent proceedings and conflicting judgments:

How do the Dutch courts address applications for recognition and enforcement when there are concurrent proceedings (Turkish or domestic) or conflicting judgments involving the dispute and the same parties?

Judgments from Turkey will not be recognised or enforced if there are concurrent proceedings in the Netherlands which began before the application for recognition and enforcement. The application may be suspended pending the outcome of the other local proceedings.

If the judgment is rendered in Turkey, the Dutch court will refuse recognition or enforcement of the judgment on the application of any interested party if the judgment is irreconcilable with:

  • a judgment given between the same parties in the Netherlands, or;
  • an earlier judgment given in another member state or in a third state involving the same cause of action and between the same parties, provided that the earlier judgment fulfils the conditions necessary for its recognition in the Netherlands.

Because there is no treaty between Turkey and the Netherlands, a Dutch judgement is required but in most cases this can be obtained through a simple and fast procedure, giving the opportunity to enforce a Turkish Judgement in the Netherlands.

 

 

 

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