CORSS-BORDER INJUNCTIONS ISSUED BY A NETHERLANDS ANTILLES COURT
International jurisdiction required
In general, a Netherlands Antilles (e.g. Curacao) court does not have unlimited jurisdiction to impose cross-border injunctions, according to established jurisprudence. It can be deduced from the judgment of March 19, 2004 of the Dutch Supreme Court (Philips / Postech case) that if the court has jurisdiction, it also has jurisdiction to make cross-border orders.
The case was about patents, in which one of the issues was whether the court has (international) jurisdiction to adjudicate the provisions requested in preliminary relief proceedings against defendants based in Taiwan and Switzerland with regard to provisions which are in part of a cross-border nature. The Supreme Court stipulated that if the court has jurisdiction (e.g. to make a cross-border declaratory judgment) on the basis of any rule of (common) international jurisdiction law to adjudicate a claim relating to the infringement of a right acquired under foreign law, it can, in principle, when so petitioned impose an injunction in respect of actions abroad.
This also applies in preliminary relief proceedings and regardless of the grounds on which the court has based its international jurisdiction. However, it should be noted that the rule formulated in said judgment regarding the possibility of making cross-border provisions relates to situations in which it has already been assumed that there is international jurisdiction. Therefore, the first question always should be whether such jurisdiction can be assumed in a particular case.
Karel Frielink
Curacao-based Attorney (lawyer) / Partner
