As a leading Dutch arbitration specialist has pointed out, “[t]he effectiveness of international arbitration depends ultimately on the question whether the arbitral award can be enforced against the losing party.” But what happens if a foreign State is the losing party and is unwilling to pay the award? Can the award be enforced against the State, and can execution measures be taken against its assets, in the territory of the Kingdom of The Netherlands (“The Netherlands”)? This chapter provides an overview of the law and practice pertaining to the enforcement of foreign arbitral awards against foreign sovereign parties in The Netherlands.
Given that the focus of this book is on the enforcement of awards that have been rendered by arbitral tribunals, i.e., on the final product of an arbitration, we will not discuss the interplay between Dutch law and various other aspects of the arbitral process, such as arbitrability and enforceability of the arbitration agreement, the constitution of the arbitral tribunal (including arbitrator challenges), and the arbitral proceedings. We will deal exclusively with the situation involving, on the one hand, a domestic or foreign private party (the award creditor) and, on the other hand, a sovereign party against which a final arbitral award has been rendered outside The Netherlands and for which enforcement is sought in the Dutch courts.