Winning a lawsuit is an important milestone, but ultimately what matters is that the judgment is actually enforced.
Winning a lawsuit is an important milestone, but ultimately what matters is that the judgment is actually enforced.
An enforceable judgment marks the start of the enforcement phase. We assess which obligation can be enforced, where recovery is possible and which measures are appropriate. The terms of the enforceable instrument, statutory protection and costs in relation to expected proceeds are central.
A judgment must be enforceable before it can be executed. In many cases, the court declares it ‘provisionally enforceable’. This means that enforcement may begin immediately, even if the opposing party appeals. If a judgment is not provisionally enforceable, actually lodging an appeal generally suspends enforcement under Article 350 of the Dutch Code of Civil Procedure. The mere fact that the appeal period is still running does not necessarily prohibit enforcement. We first check the enforceable instrument, service, any deadlines and the consequences of a remedy already pursued. Anyone enforcing a provisionally enforceable judgment must consider repayment and possible liability if it is later overturned.
Once a judgment is enforceable, making a final demand for payment is often sensible. It gives the other party an opportunity to comply voluntarily and may save further time and costs. If the other party does not respond or refuses to pay, various enforcement measures can be used to collect the claim.
One of the most effective methods is third-party attachment. This involves arranging attachment of bank accounts, receivables from customers or other assets held for the debtor by third parties. The bailiff effects the attachment. The third party, such as a bank or customer, must then declare what it owes the debtor in accordance with statutory rules and, where required, pay it to the bailiff. Statutory deadlines and protective rules apply. This can be a swift and efficient way to recover a claim.
If third-party attachment is unavailable or yields insufficient proceeds, attachment may be levied on the debtor’s property. This may include movable assets such as business equipment, stock or vehicles, as well as immovable property such as real estate. Attached assets may subsequently be sold publicly, with proceeds distributed taking account of enforcement costs, preferential claims and other creditors’ rights. We assist throughout, from attachment through auction and distribution.
Sometimes the obligation is not to pay money but to do something else, such as perform a contractual obligation or cease unlawful conduct. In such cases, measures may be used to compel compliance:
We advise on the most effective measures for your particular situation.
Assets abroad require assessment of recognition and enforcement in the relevant country. Within the scope of Brussels I Recast, many civil and commercial judgments do not require a separate declaration of enforceability, but documents, service, grounds for refusal and local enforcement rules remain relevant.
Outside that framework, treaties or national law may determine the position. A Dutch judgment therefore does not provide identical access to recovery everywhere. We connect international disputes with the asset position and involve foreign lawyers and bailiffs where necessary.
Before enforcement begins, it is essential to identify the debtor’s assets available for recovery. This avoids unnecessary costs if assets prove insufficient. An asset investigation can provide insight into the debtor’s financial position and available property. Public registers such as the Land Registry, Trade Register and Central Insolvency Register are consulted. Where needed, additional information is obtained from third parties who may provide useful insights. The findings inform an assessment of enforcement prospects and recommendations on the most effective measures.
An enforcement dispute is not a disguised appeal against the substantive decision. There may, however, be disagreement about interpretation of the order, compliance, forfeited penalty payments or abuse of enforcement powers. The appropriate test depends partly on the judgment’s status and the remedy pursued.
In its judgment of 20 December 2019, the Dutch Supreme Court clarified the standards for stays and enforceability. Where a remedy remains available, a balancing of interests may be relevant. Whether enforceability was previously decided with reasons, and whether new circumstances have arisen, matters. A final, unappealable judgment calls for a different approach. We therefore assess the instrument and procedural position before seeking a stay.
Enforcement costs are generally borne by the debtor, but usually have to be advanced by the instructing party. Not all costs are recoverable, and insufficient assets may leave the instructing party bearing them. A cost-benefit analysis helps determine whether enforcement is worthwhile. It considers the relationship between the claim amount and expected costs, the likelihood of successful enforcement and alternatives such as a payment arrangement or partial recovery.
No. Exemptions from attachment, protected amounts, third-party rights and proportionality may impose limits. An asset investigation must also be carried out lawfully.
Yes, if it offers realistic proceeds and appropriate security. Clearly document deadlines, consequences of non-payment and the relationship with existing attachments.
Contact us with the judgment, service documents and information about payment or compliance. We advise on enforcement, settlement or an enforcement dispute and coordinate necessary steps with the bailiff.
