Procedural Background

This document is an Opinion (Conclusie) issued by the Advocate General to the Dutch Supreme Court (Hoge Raad) concerning an application for pre-judgment attachment (conservatoir beslag). The claimant sought to attach assets belonging to a respondent foreign State located in the Netherlands to secure a claim arising from an UNCITRAL arbitral award rendered on January 26, 2021. The lower courts, including the District Court and the Court of Appeal of Amsterdam, had previously denied the ex parte attachment request on the grounds of State immunity from execution.

Legal Issues and Positions

The principal legal issue before the Supreme Court was the allocation of the burden of proof regarding the susceptibility of State assets to execution. The underlying contract contained a waiver of immunity (Article 26), which included specific exceptions for defense-related, diplomatic, and other protected assets. The claimant argued that, given the general waiver, the burden shifted to the respondent State to prove that the targeted assets fell within the contractual exceptions. Conversely, the lower courts held that the claimant bore the burden of proving that the assets were not intended for public purposes and thus fell outside the scope of immunity.

Advocate General's Analysis

The Advocate General analyzed the issue under Dutch law and customary international law, referencing the UN Convention on Jurisdictional Immunities of States and Their Property. Relying on established Supreme Court precedent (including the Morning Star/Gabon decision), the Advocate General reaffirmed that State property is presumed immune from execution unless established otherwise. The burden of proof rests strictly on the creditor seeking attachment to demonstrate that the specific assets are used or intended for other than non-commercial government purposes. The Advocate General found that the contractual waiver did not explicitly alter this evidentiary burden. Consequently, the claimant's assertion that the assets were prima facie outside the exceptions was deemed legally insufficient.

Conclusion

The Advocate General concluded that the Court of Appeal did not err in its application of the burden of proof or its interpretation of the waiver clause. Accordingly, the Advocate General recommended that the Supreme Court dismiss the cassation appeal.