The term ‘jurisdiction’ refers to the authority given by law to a court to try cases and rule on legal matters over certain types of legal claims and/or within a particular geographic area. In cases between two citizens of the same country, where the claim is not related in any way to a foreign State, the court of the home country of both parties is always competent to consider the action and to give a judgment in order to settle the dispute. The rules of 'national jurisdiction' of that country decide which type of court is authorized to admit a certain action (subject-matter jurisdiction or jurisdiction ‘ratione materiae’) and in which district this claim has to be filed at such a court (territorial jurisdiction or jurisdiction ‘ratione loci’).
As soon as a legal claim encloses an international element, in the sense that either at least one of the involving parties is not a resident of the Netherlands or the case is in itself strongly connected with a foreign country, questions about 'international jurisdiction' arise. Is the Dutch court, were the ‘international claim’ is filed, allowed to admit the case and to rule on the matter or must it reject the claim in favour of the court of another country that has exclusive jurisdiction?
The question whether a Dutch court is allowed to rule on an international claim, has to be answered firstly by European Regulations, secondly by International Conventions (Treaties) and thirdly by national rules of international private law. When both parties are a resident of a EU Member State, the matter will usually be governed by a European Regulation (or, for instance when a Danish citizen is involved, a European Convention). A Dutch court has to follow the instructions imposed by that Regulation. If one of the involved parties comes from abroad, yet not from a country that's a member of the European Union, the court will check of its own motion if the Netherlands have signed a Treaty with that particular country that covers this type of lawsuit. If that appears to be the case, the court must determine on the basis of that Treaty if it has jurisdiction to give a decision on the international claim. When such a Treaty does not exist or when it is not applicable in this specific situation, the national rules of international private law of the Netherlands ('national IPL') decide whether a Dutch court is allowed to accept the case. One has to keep in mind that these rules of national IPL indeed form a part of the international private law of the Netherlands, although they are not based on an international source of law, like a European Regulation or an international convention, but purely on domestic statutes.
When a lawsuit with an international element falls within the competence of a Dutch court, rules on national jurisdiction have to keep in mind as well. Such rules on national jurisdiction only come up for discussion after it has been established that a Dutch court has authority to rule on the matter. If it has such authority, either because the dispute only involves Dutch aspects or because rules of international jurisdiction have pointed out that the international claim may be settled by a court in the Netherlands, the question has to be answered which Dutch court will admit this specific national or international claim. This always has to be done on the basis of national jurisdiction. The nature and value of the legal claim indicate which type of court is allowed to accept this kind of lawsuit (subject-matter jurisdiction). Subsequently, one of the various courts of this type, present in the Netherlands, has to be picked out on the basis of geographical criteria (territorial jurisdiction). The rules of national jurisdiction apply in the same way to both, national and international legal claims.
The term ‘jurisdiction’ refers to the authority given by law to a court to adjudicate cases and issue orders in relation to certain types of legal claims and/or within a particular geographic area. In cases between two citizens of the same country, where the claim is not related in any way to a foreign State, the court of the home country of both parties is always competent to consider the action and to give a judgment in order to settle the dispute. The rules of national jurisdiction of that country decide which type of court is authorized to admit a certain action (subject-matter jurisdiction or jurisdiction ‘ratione materiae’) and in which district this claim has to be filed at such a court (territorial jurisdiction or jurisdiction ‘ratione loci’). As soon as a legal claim encloses an international element, in the sense that at least one of the involving parties is not a resident of the Netherlands or because the case itself is strongly connected with a foreign country, questions about international jurisdiction arise. Is the Dutch court, were the ‘international claim’ has been filed by one of the parties, allowed to admit and rule on the matter or must it turn it down in favour of a court of another country?
The national courts of the Netherlands at all times have jurisdiction over legal actions related to situations that are closely connected with the Netherlands, provided that exclusively Dutch citizens are involved. When a legal relationship or a dispute is governed by Dutch jurisdiction, the civil lawsuit has to be filed at first instance at the District Court (‘rechtbank’) or the Subdistrict Court (‘kantongerecht’). Whether the District Court or Subdistrict Court is allowed to admit the action, depends on the nature and content of the legal claim. All rights of action with a value less than € 5,000 have to be lodged at the Subdistrict Court, regardless the nature of the claim. The Subdistrict Court is also the court of first instance for actions related to an employment contract, a lease agreement, an agency agreement, a hire purchase or a farm lease agreement, and this irrespective of the value of the claim. Such rights of actions always fall under the subject-matter jurisdiction of the Subdisctrict court. All other legal actions have to be filed at first instance at the District Court.
After it has been cleared which type of court has subject-matter jurisdiction, the question arises which District Court, or when a Subdistrict Court is competent, which Subdistrict Court, has territorial jurisdiction. In principle a legal action has to be brought before the competent District Court or Subdistrict Court of the territory were the defendant has his domicile or habitual residence or, when it concerns commercial partnerships or legal persons, where he has his seat or head office. The territorial jurisdiction of a Dutch court is therefore linked to the residence or seat of the defendant.
When a filed action has an international element, the seised Dutch court firstly must assess if the Netherlands have jurisdiction according to the rules of international private law. A lawsuit has an international element as soon as one of the involving parties is not living or seated in the Netherlands or, although both parties reside in the Netherlands, the lawsuit concerns an issue that is more linked to a foreign country than to the Netherlands, for instance because it is related to real estate situated abroad or to a marriage contracted in another country under its matrimonial law. This means that the Dutch court first of all has to find out in which countries the involving parties generally reside and also what type of legal action is presented and if it has a connection with another country.
When it’s clear that the legal action is governed by international private law, four steps must be followed in order to examine if the Dutch court has jurisdiction over the presented right of action.
With respect to questions of jurisdiction it is common, national as wel as international, to make a distinction between matrimonial and familial matters on the one hand and other civil and commercial matters on the other hand. Each type is subject to its own rules of international private law, including different European Regulations and Treaties.
In particular two European Regulations are essential. First the Brussels I Regulation 2000 on jurisdiction and the enforcement of judgments in civil and commercial matters and secondly the Brussels II Regulation 2003 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility, including child abduction. These Regulations only have meaning when the plaintiff and defendant are residents of two different EU Member States. But in that case the Regulation always determines which of the involved EU Member States has jurisdiction, even when these Member States are both a contracting party to another Treaty or convention that covers the matter as well. In the last situation the appropriate European Regulation will set aside the applicable Treaty. This, of course, is only possible when all involved citizens are inhabitants of a Member State of the European Union. All EU Member States have agreed that their mutual relationship with regard to matters falling under a European Regulation shall be governed, on top of everything, by these European laws. Provided no third countries are involved, this mutual agreement can’t harm other States and it isn’t in violation with treaties in which both EU Member States participate.
A Treaty or other International Agreement can only be appropriate if it deals with this type of legal claim and if the plaintiff and defendant, therefore both parties to the legal proceedings, live in a country that’s a member state of that Treaty. If that’s the case, the question if the Dutch court has jurisdiction, must be answered in accordance with this Treaty.
These rules are placed in Section 1 of Book 1 of the Code of Civil Procedure and point out in which situations Dutch courts have the power to rule on a legal claim. Application of these rules may lead to the conclusion that no Dutch court is allowed to take the case in, for instance because it has no connection with the Netherlands at all. When there is sufficient connection, the case may be dealt with by a Dutch court. After it has been established that Dutch courts have jurisdiction to adjudicate the (transnational) legal claim, the seised Dutch court has to determine on the basis of national rules for subject-matter jurisdiction if it ualifies as the correct type of court to handle the claim and it has to examine on the basis of national territorial jurisdiction if it is empowered to give a judgment seen the domicile (habitual residence) of the involved parties. These rules for national jurisdiction should, however, not be confused with national rules of international private law (national IPL) on the basis of which has to be determined if Dutch courts have international jurisdiction.
The Netherlands have closed a few bilateral and multilateral treaties with other countries governing jurisdiction over international legal actions with respect to various subject-matters. As a EU Member the Netherlands also have to acknowledge European Regulations relating to questions of jurisdiction. Often these treaties and regulations not only give rules on jurisdiction, but also about the recognition and enforcement of judgments of foreign courts. Although closely connected to each other, jurisdiction on the one hand and the recognition and enforcement of judgments on the other are in essence two different issues. The fact that the court of a particular State finds that the international private law of that State points out it has jurisdiction, doesn’t automatically mean that this judgment will be recognized as such by the court of another State, let alone that it’s enforceable there. As a starting point the court of a particular State will not acknowledge a judgment of the court of a foreign country. This conception would imply that the foreign judgment can’t be enforced in that other State, so that the involved party has to file the same lawsuit again at a court of that State in order to get a judgment that will be enforceable there. Even when a Treaty or International Cconvention regulates which of the Contracting States has jurisdiction over certain international relationships or disputes, this doesn’t necessarily indicate that a judgment of a competent court, thus of a court with jurisdiction according to the Treaty, will be recognized by another Contracting State as a valid judgment that can be enforced and executed there. But it’s obvious that a Treaty or European Regulation on jurisdiction would hardly have any practical value if it didn’t simultaneously ordered that the Contracting States have to recognize the judgments of each other’s courts in so far these judgments are given by a court that, according to the applicable Treaty or Regulation, has jurisdiction and, with that, the acknowledged power to rule on the claim. That’s why these legal topics are usually dealt with in the same Treaty or Regulation.
The obligation of a Contracting State to recognize the judgments of the court of another Contracting State does not reach the point that a judgment of a court of another Contracting State can be handed over directly to a bailiff or the police of a different Contracting State, with the request to enforce it there, for example by confiscating goods of an inhabitant of that state. At all times the Contracting State where the foreign judgment has to be executed, has the right to verify if the presented foreign judgment is authentic and in line with the Treaty or Regulation, so as to protect its own citizens. In order to fulfil this task, the Contracting States have appointed one or more of their national courts where foreign judgments can be filed with the request to make it enforceable in that State too. These courts, however, are not allowed to consider the case again, thus to review the case fully. They may only examine if vital legal formalities are met in accordance with the Treaty or Regulation. When the foreign judgment passes this test, the court of the Contracting State where the foreign judgment shall be executed, gives a separate judgment, in which it approves the enforceability of the foreign judgment with respect to its own territory. The enforcement then takes place in conformity with the rules of law of that country.
The court of a State with jurisdiction is allowed to consider the case and to give a binding judgment on the legal claim. Usually this action has to be judged according to the national law of that same State. So the court with jurisdiction has to decide the matter on the basis of the national law with which it is familiar. But that’s not always the case. It’s possible that the rules of international private law on jurisdiction, such as the Brussels I and II Regulation, indicate that the court of a specific State is authorized to give a judgment on a certain claim, whereas the rules of international private law on applicable law, such as the Rome Convention of 1980, point out that the claim itself has to be reviewed according to the national law of another State. This could mean that the court of, for instance, the Netherlands, which is actually considering the case, has to apply the national law of Germany or Indonesia in its proceedings and give a judgment that is consistent with German or Indonesian law. Of course this produces problems and setbacks, because the judging court has to be advised by impartial lawyers from another country how the national law of that country should be applied and interpreted in this case. That’s why, if possible, the lawsuit should be laid before the court of the country which national law applies to the filed case. Evidently, the most effective way to handle an international legal action is to file the lawsuit at the court of a country with jurisdiction, whose national law will govern the case and where the judgment will be enforced directly or who is a party to a Treaty or Regulation with the country where the judgment, if need be, finally can or has to be enforced.
The question which national law governs the case to be trialled, has to be answered by the rules of international private law with regard to a conflict of laws.