On 15 February 2023, the US District Court for the District of Columbia issued a temporary restraining order against the Kingdom of Spain, ordering it to discontinue proceedings before the Dutch District Court against two Dutch entities. As a result, Spain is enjoined from pursuing its claims in the Netherlands. Or is it?

The background of the US court litigation concerns the attempt of—among others—Florida-based solar power investor NextEra, through its Dutch entities, to have an ICSID award against Spain recognized and enforced in the United States. Spain disputes the validity of the enforcement of that award in those US proceedings.

Separately, in December 2022, Spain commenced proceedings against the Dutch NextEra entities before the District Court of Amsterdam. The writ of summons contained a request for interim measures to enjoin NextEra from pursuing the US enforcement proceedings or any other enforcement proceedings anywhere in the world.

In response, in the US proceedings, NextEra then moved for a preliminary injunction and restraining order to enjoin Spain from continuing the Dutch proceedings. The US District Court granted the motion, in effect ordering an anti-suit injunction against Spain. What legal effect the US anti-suit injunction would have in the Netherlands jurisdiction is, however, a bit of a question mark.

Anti-suit injunctions, as such, are not incompatible with the Dutch public order. In national matters, anti-suit injunctions have been granted, albeit sparingly and under exceptional circumstances. In an international context this is different. Within the EU, national courts of member states cannot grant anti-suit injunctions that prevent a party from starting or continuing proceedings before a national court of another member state.¹ The rationale behind this anti-suit injunction prohibition is that the closed system of the Brussels I-bis Regulation on the competence of national courts² ensures that the national courts of member states should apply rules on competence uniformly. It is for each respective national court to determine whether it is competent to rule on a claim. If consistently applied, the Brussels I-bis Regulation should ensure that competent courts will accept jurisdiction, and those that are not, will decline such jurisdiction.

This prohibition also applies to court-issued anti-suit injunctions that seek to enjoin a party from commencing or continuing court proceedings before a national court of a member state on the ground that those proceedings would be contrary to an arbitration agreement between the parties.³

How then would the US District Court anti-suit injunction, regarding the Dutch court proceedings, be treated in the Dutch jurisdiction? First, the above-mentioned prohibition to issue anti-suit injunctions based on Brussels I-bis applies only to the national courts of member states, not to foreign courts.⁴ An outright refusal of recognition of the NextEra anti-suit injunction, based on the abovementioned rule under EU law, is therefore unlikely. All the more in light of the European Court of Justice’s 2015 Gazprom judgment,⁵ in which it determined that arbitral awards fall outside the material scope of the Brussels I-bis Regulation. As a result, national courts’ decisions on recognition of arbitral awards that contain an anti-suit injunction rendered by an arbitral tribunal are not governed by the aforementioned anti-suit injunction prohibition. By analogy, since a US court judgment falls outside the material scope of the Brussels I-bis Regulation, it can be argued that the prohibition cannot apply to a foreign, non-EU, judgment containing an anti-suit injunction either.

Second, however, as there is no treaty on mutual recognition of court judgments between the United States of America and the Netherlands, US District Court judgments cannot be recognized in the Dutch jurisdiction, nor do specific recognition proceedings exist. To assert its rights under the US anti-suit injunction in the Netherlands, NextEra would have to commence new court proceedings before the Dutch court and request an anti-suit injunction order. As an alternative, it could apply for truncated proceedings, which have been developed through case law (the so-called Gazprom criteria, based on a landmark Dutch Supreme Court judgment, separate from the abovementioned EU Court of Justice Gazprom case). In this case, the Dutch court performs a limited review of the US District Court judgment, assessing if internationally upheld standards on competence of the foreign court and due process as well as the Dutch public order do not conflict with the foreign judgment. The Dutch court would also verify that no other judgment between parties on the same subject matter had been issued in the Netherlands. If the Gazprom criteria are met, the foreign judgment would be incorporated in the Dutch judgment, granting the claimant an enforceable title in the Dutch jurisdiction.

I am unaware of Dutch judgments on the recognition of non-EU judgments containing anti-suit injunctions in the Netherlands (but would be happily corrected!). However, in light of the fact that (i) based on national case law, anti-suit injunctions are not deemed incompatible with the Dutch public order as such and (ii) based on EU case law, anti-suit injunctions in arbitral awards are explicitly carved out from the anti-suit injunction prohibition, I would imagine that a US court judgment, containing an anti-suit injunction could, in principle, be eligible for recognition in the Netherlands.

Only when—or perhaps if—the US court judgment containing the anti-suit injunction is recognized through Dutch court proceedings, will it have any impact in the Dutch jurisdiction. In the meantime, NextEra might want try a blocking mechanism, for instance by raising an argument of litis pendens in the pending Dutch proceedings arguing that the US District Court proceedings take precedence over the Dutch proceedings.

1. ECJ 27 April 2004, C-159/02 (Turner/Grovit).
2. Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast).
3. ECJ 10 February 2009, C-185/07 (Allianz / West Tanker).
4. District Court of Zwolle-Lelystad 3 April 2009, 155790 KG ZA 09-139.
5. ECJ 13 May 2015, C-536/13.