ORDINARY VERSUS SUMMARY PROCEEDINGS IN ARUBA
Interlocutory or summary proceedings provide for immediate relief
Article 110 of the Netherlands Antilles and Aruba Code of Civil Procedure (‘the Code’) provides that all adversarial proceedings shall be initiated by means of a petition to the court of first instance. Proceedings so initiated are ordinary proceedings a.k.a. proceedings on the merits.
A petitioner may opt for preliminary relief proceedings (a.k.a. interlocutory proceedings; ‘kort geding’). Article 226 of the Code provides that in urgent cases which require an immediate decision, the plaintiff may request a provisionally enforceable judgment (‘beslissing bij voorraad’).
Article 229 of the Code provides that a provisional decision rendered pursuant to this special type of proceedings shall not impact the ‘principal case’, meaning that both parties are free to commence ordinary proceedings in respect of the same matter and that in such ordinary proceedings the court shall not be bound by the provisional decision. If the defendant does not voluntarily appear at the court hearing he will be summoned by the judge to appear (art. 226(2) NACCP).
With respect to both proceedings, a claim may be rejected (‘worden afgewezen’) by the court on the merits of the case, i.e., that the claim is considered to be unfounded. However, if a claim is denied for reasons other than the merits of the case, the plaintiff will be declared non-suited (‘niet-ontvankelijk’) in the original complaint, or in the appeal, if any. Or in exceptional cases: the initial petition or the appeal petition could be declared void.
Karel Frielink
Attorney (Lawyer) / Partner
(20 February 2010)
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