WHAT DAMAGES ARE RECOVERABLE UNDER ARUBAN LAW? (II)
Case law
The Supreme Court in its case law has held that relatives of a deceased person are only entitled to sue for damages against the person liable for his or her death, if and to the extent that their death has left them in need. The extent of need is measured by the standard of living of the surviving relatives during the life of the deceased. See, for example, Supreme Court dated December 13, 1985 and Supreme Court dated February 28, 1986. This rule may be considered one of the fundamental principles and values of the Aruban legal system, and may not be contravened by a law of another jurisdiction. This brings us to the third issue.
In accordance with the Aruban rules of private international law, a claim arising from an unlawful act is, in the absence of a choice of laws by the parties, governed by the law of the country where the unlawful act was committed (lex loci delicti). In our opinion, however, this option may possibly not apply if the tortfeasor and the injured party are both residing in a country other than that where the unlawful act was committed and if the legal effects occur in their entirety in the country of residence. This is the so-called legal effects doctrine. In such an event, the question of whether the act committed was unlawful, and, more importantly for the question at hand, the other elements of the unlawful act, such as (recovery of) damage, may be governed, where possible, by the legal effects doctrine.
This is evidenced by judgments of the Supreme Court, e.g. Supreme Court, November 19, 1993 (COVA case). In this case, the facts were briefly put as follows.
COVA, a foundation dealing in oil, was the employer of a person named H. On August 7, 1984 H requested the NMB Bank to transfer NLG 10 mln. to COVA’s account at the bank, thereby making use of a credit agreement to the value of NLG 250 mln. that COVA had with the bank. The next day the bank received a telex requesting them to transfer nearly all the money to an account with the Banque Generale du Luxembourg (BGL) in Zurich. The telex contained a code that parties had agreed upon in advance and mentioned the names of two directors of COVA. The following day in Zurich a certain A collected the money that had been transferred, in cash. Subsequently both A and H vanished into thin air. COVA claimed damages from both the NMB Bank and BGL before a Dutch court of law, stating that BGL committed a tort: they should not have paid the money to A without checking with COVA first.
One of the legal questions was what law was applicable to the tort: Swiss law or Dutch law? The answer to this question was, to say the least, not without significance. According to Swiss law (at the time) a claim based on tort could no longer be submitted if more than a year had passed since the date that the victim became aware that damage had been done, and by whom. According to Dutch law, a claim based on tort is statute-barred after five years. In view of the fact that BGL was summonsed almost two years after the damage had occurred and become known, the claim could be submitted in accordance with Dutch law, but no longer in accordance with Swiss law.
In its decision the Supreme Court confirmed that the principal rule of Conflicts Law in the field of international torts is that the applicable law is the law of the location of the wrongful act, the lex loci delicti. The place of the wrongful act may, however, be fortuitous or unascertainable. As a result, exceptions to the lex loci delicti rule such as the legal effects doctrine may, if possible, apply. However, the Supreme Court also held that this exception should be applied restrictively. The Supreme Court held that an exception to the lex loci delicti rule can only be made if all legal consequences of the wrongful act belong to the legal sphere of a state (country) other than the state where the act took place. Furthermore, it held that this is only the case when both parties, the tortfeasor and the victim, are domiciled in that state.
Karel Frielink / Ursus van Bemmelen
Dutch Antilles Attorneys / Lawyers
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