Enforcing an arbitral award against a State in the Netherlands

The enforcement stage: winning is not the same as getting paid

On 21 July 2026 the provisional relief judge in Rotterdam lifted the attachment that Blasket had levied on a building owned by Spain to enforce an arbitral award of €106 million. Winning an arbitration is not the same as being paid: enforcement against a State clears three hurdles, those of service, immunity from execution and State aid. Recovery ultimately succeeds only against assets with a demonstrably commercial purpose, or through an entity that qualifies as the State's alter ego.

Attachment on the Instituto Cervantes building is lifted

The case turns on ECLI:NL:RBROT:2026:8903 and on a building in Utrecht used by the Instituto Cervantes, the cultural institute of the Kingdom of Spain.

The background. The Japanese investor Eurus Energy Holdings had brought a claim against Spain before ICSID over the retroactive curtailment of a subsidy scheme for renewable energy (a breach of fair and equitable treatment under Article 10 ECT). By final award of 14 November 2022 the tribunal ordered Spain to pay €106.2 million, plus costs and interest; an application to annul the award was rejected on 31 July 2025.

Eurus then sold its claim to Blasket Renewable Investments, a Delaware vehicle that buys up arbitral awards against Spain. Blasket asked the provisional relief judge in The Hague, ex parte, to recognise the awards and grant leave to enforce them, obtained that leave on 19 March 2026, and levied attachment on the building on 24 April 2026. That is where it went wrong. The judgment shows that the enforcement stage in the Netherlands is a discipline in its own right, with pitfalls that arbitration counsel typically do not handle.

The first hurdle: defective service voids the enforcement

Enforcement stands or falls on a formal requirement. Section 430(3) of the Dutch Code of Civil Procedure (DCCP) provides that the enforceable copy (grosse) of an order can only be enforced after service on the party against whom enforcement is directed. That enforceable copy, the title issued in enforceable form, is the linchpin of the entire enforcement.

Blasket had not served that enforceable copy. What was delivered to Spain was an English translation of the leave order onto which a copy of the enforceability stamp, and even copies of the judge's and the registrar's signatures, had been pasted. The provisional relief judge called it a cut-and-paste job: not an official enforceable copy, because it was not produced by a sworn translator and was not a certified copy of the decision. That failed to meet Section 430 DCCP and rendered the enforcement void.

Blasket's reliance on the principle of deformalisation did not succeed. The leave order had been granted ex parte, that is, without Spain being heard. Precisely then, the absence of proper service harms the interests of the party subject to enforcement. A second failure came on top of this: under Section 3a of the Court Bailiffs Act (Gerechtsdeurwaarderswet) the bailiff should have warned the minister as soon as he had to reckon with a possible conflict with the State's obligations under international law. That notification came only at the moment of the attachment itself, too late. That same route, in which the bailiff informs the minister, can in itself lead to the attachment being lifted: in the matter of third-party attachments against Albania this happened because it could not be established that the attached goods had a non-public purpose (ECLI:NL:RBDHA:2021:534).

The second hurdle: immunity makes State property in principle untouchable

Beyond service, the attachment ran up against immunity from execution. The starting point of customary international law is that the property of foreign States is not open to attachment, unless it is established that it has a non-public purpose. That follows from Article 19 of the UN Convention on Jurisdictional Immunities of States and their Property and from the Supreme Court's Samruk judgment, ECLI:NL:HR:2020:2103.

The Supreme Court placed the burden of proof on the creditor: it must adduce information showing that the goods are used for purposes other than public ones. And, crucially, it is not only the asset's immediate use that counts. Even where the proceeds of commercial activities ultimately flow back to a public task, the asset shares in the immunity.

That is exactly where Blasket came unstuck. The building is allocated by Spanish statute to the Instituto Cervantes, a public-law institution without a profit motive that promotes the Spanish language and culture. The fact that the building is also let out for concerts, wine tastings and commercial language courses makes no difference: the proceeds benefit the Instituto Cervantes' public task.

How heavily that burden of proof weighs is shown by the Syrian case ECLI:NL:GHAMS:2017:3729. A creditor sought to attach funds of a Syrian State bank held at ABN AMRO and ING and argued that those funds had a commercial purpose. The court of appeal refused leave: the bank also performed public tasks, such as the collection of tax revenue, so there was mixed use. Anyone who cannot show which part is non-public gets no attachment. The same befell creditors of Kazakhstan: the attachment on funds of the National Bank of Kazakhstan was lifted (ECLI:NL:RBAMS:2021:3201), because central bank funds serve, by their very nature, a public purpose.

The flip side of that immunity is that it is not an absolute wall. As soon as it is established that assets have a purely commercial purpose, they fall outside the protection. In the case of Instrubel v Iraq, ECLI:NL:GHAMS:2018:2736, Iraq had been ordered in an ICC arbitration to pay more than €38 million. The creditor levied third-party attachment on claims arising from oil production contracts. The minister notified the bailiff that the attachments conflicted with international law, but the court of appeal set that notification aside: the proceeds from the commercial oil contracts had a non-public purpose and were therefore open to attachment.

A second route runs through the assets of State-owned enterprises. A State may in principle hide behind the separate identity of its companies, but not always: in the Samruk judgment the Supreme Court held that a State vehicle can abuse that separation of identity, so that treating the company and the State as one can open the door to recovery.

The third hurdle: State aid blocks payment by an EU Member State

Where an EU Member State is involved, a further obstacle arises that shifts the battle to European law. Spain had notified the payment obligation under the award to the European Commission as an aid measure in December 2022. The Commission had already held in 2017 that damages awarded in arbitration on account of the amendment of that subsidy scheme constitute State aid, and has not yet reached a final decision on this notification.

The underlying rationale is that paying such an award restores the economic advantage of the abolished scheme: a State that complies with the judgment in effect grants once more the aid that was withdrawn. In the Micula case the Court of Justice confirmed that the Commission is competent to subject that payment to State aid control (CJEU 25 January 2022, C-638/19 P, Commission v European Food, Micula). That review serves precisely to distinguish genuine compensation for damage, which is not in itself State aid (CJEU 27 September 1988, Joined Cases 106-120/87, Asteris), from a payment cast as damages that in substance restores the withdrawn subsidy. For investors from another EU Member State a second complication arises, because the Court has held that intra-EU arbitration under the Energy Charter Treaty is incompatible with EU law (CJEU 2 September 2021, C-741/19, Komstroy, following Achmea). That intra-EU complication does not arise for the Japanese investor Eurus, but the State aid hurdle remains in full.

As long as that decision is outstanding, the standstill obligation of Section 108(3) TFEU applies: the Member State may not disburse the notified aid. The Commission appeared in the preliminary relief proceedings as amicus curiae. The judge ultimately lifted the attachment on grounds of the void service and the immunity, but left no doubt that State aid law matters: it is by no means excluded that the TFEU takes precedence and that Spain may not comply with the award.

This is no isolated event. In two rulings in the same Amsterdam case concerning the same Spanish scheme, ECLI:NL:RBAMS:2025:732 and ECLI:NL:RBAMS:2024:3156, the investors AES and AEF had likewise assigned their award to Blasket, and there too the central question was whether performance amounts to unlawful State aid.

What does this mean for those seeking to recover from a State?

The Netherlands is an attractive forum for recovery: there is a great deal of State property, there is a settled line on immunity from execution since the MSI/Gabon and Samruk judgments, and The Hague is an arbitration hub. But winning and being paid are two separate trajectories.

The three hurdles determine the route. Service is a validity requirement, not a formality: a defective or improvised enforceable copy voids the entire enforcement. Direct the attachment at assets with a demonstrably commercial purpose, or at an entity that can qualify as the State's alter ego, because the burden of proof to break the immunity rests on the creditor. And where an EU Member State is involved, map out State aid law: a standstill can block payment for years, even where the award is final.

Cited case law

Supreme Court
- ECLI:NL:HR:2020:2103 (Samruk / Kazakhstan): standard for immunity from execution
- ECLI:NL:HR:2016:2236 (MSI / Gabon and the State)
Courts of appeal
- ECLI:NL:GHAMS:2018:2736: Instrubel / Iraq, attachment on commercial oil proceeds
- ECLI:NL:GHAMS:2017:3729: Syrian State bank, leave refused on account of mixed use
District courts
- ECLI:NL:RBROT:2026:8903: Blasket / Spain (the judgment discussed)
- ECLI:NL:RBAMS:2025:732 and ECLI:NL:RBAMS:2024:3156: Spain, State aid on performance of an arbitral award
- ECLI:NL:RBAMS:2021:3201: attachment on National Bank of Kazakhstan funds lifted
- ECLI:NL:RBDHA:2021:534: bailiff preliminary relief proceedings, third-party attachments against Albania
Court of Justice of the EU
- C-638/19 P, ECLI:EU:C:2022:50 (Commission v European Food, Micula): the Commission is competent to assess whether paying an arbitral award that restores withdrawn aid constitutes State aid
- C-741/19, ECLI:EU:C:2021:655 (Komstroy): intra-EU arbitration under the Energy Charter Treaty incompatible with EU law
- C-284/16, ECLI:EU:C:2018:158 (Achmea): arbitration clause in an intra-EU BIT incompatible with EU law
- Joined Cases 106-120/87, ECLI:EU:C:1988:457 (Asteris): compensation for damage caused by public authorities is not, in itself, State aid

Juriaan de Vries — lawyer at Prime Law, specialised in corporate and commercial litigation. See the disclaimer.

See also

• Attachment and enforcement: the doctrine in overview
• Lifting an attachment: when does the provisional relief judge grant it?
• Enforcement auction blocked: how the provisional relief judge tempers an enforcement dispute
• Attachment abroad: which court may lift it?: which court has jurisdiction over an attachment across the border