Update from the Netherlands: judgments with cross-border impact

Meanwhile, the Dutch Supreme Court provided two interesting judgments with cross-border impact. In its judgment of 18 January 2019 in one of the many ‘Yukos-cases’ the court ruled that the recognition and enforcement of a Russian bankruptcy judgment, and legal consequences thereof, is in violation with the Dutch (civil) public policy, because the bankruptcy was orchestrated by the Russian government. The fact that an appeal proceeding was not instigated by the shareholders in Russia, does necessarily justify the conclusion that they did not exhaust their rights, because that appeal proceeding does not qualify as an effective remedy. Based on these conclusions the recognition and enforcement of the Russian bankruptcy judgment was denied. In its judgment of 22 January 2019, the court raised questions in concern to the possible applicability of the Brussels Recast Regulation to an injunction claim to lift extraterritorial seizing measures by a foreign state or international organisation based on the principle of immunity from execution. The court indirectly considered the possibility that, although the principle of immunity from execution can only be instigated by public entities, the underlining contractual relationship might play a role to determine the possible applicability of the Brussels Recast Regulation. The court decided to file preliminary questions to the CJEU.

Another interesting judgment, came from the Amsterdam Court, concerning the question if a Tennessee judgment ordering the defendant to pay punitive damages can be recognised and enforced in the Netherlands. The court finds that the principle of civil punitive damages is not part of the Dutch legal system, and if such punitive damages are excessive, that part of the foreign judgment cannot be recognized and enforced.