LITIGATION IS A SKILLED PROFESSION (part 1)
Everything boils down to knowledge and experience
Litigation appears to be simple. For instance you have a monetary claim on someone (a private person or an enterprise) and you ask the court to determine in a judgment that you indeed have this claim. And you ask the court that the counterparty be ordered to pay the claim. And once you have this judgment, you can enforce it with the assistance of a bailiff (deurwaarder). This means for instance seizing a trade stock and selling it publicly in an auction. Simple, yes? Why then is litigation a discipline for which you should preferably engage a professional? On the basis of the Curacao civil law of procedure I will discuss briefly several subjects demonstrating the problems you might be faced with.
Firstly the law of procedure has a formal nature. There are all kinds of rules for instigating and thereafter conducting a lawsuit. For instance you must make sure that the court fee is paid within due time and that you have brought the case before the right court. You can determine which court has jurisdiction on the basis of the rules of civil procedural law. This can be a court in your own country but it could also be a court in a foreign country. In many cases it has been determined contractually which court has been declared by the parties to have jurisdiction (forum agreed upon). If you bring a case before the wrong court, the court will declare that it lacks jurisdiction (onbevoegdverklaring).
But it can also be the case that an arbitration clause is included in a contract. In that case you should not go to the civil court but institute arbitration proceedings. Different rules will apply to this. These can be rules in the contract, rules in your own country but also rules of the International Chamber of Commerce or of another institution.
In this connection I will also mention the Code of Canon Law (Wetboek van Canoniek Recht) providing for ecclesiastical procedures, where the ecclesiastical court has exclusive jurisdiction to settle for instance affairs with regard to spiritual issues. If pursuant to the Code of Canon Law an (internal) appeal procedure is possible, this must have been followed before the civil court can be involved. It will also depend on the nature of the claim whether the civil court declares that it has or lacks jurisdiction. (To be continued)
Karel Frielink
Attorney (Lawyer) / Partner
(26 April 2013)
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