THE COURT OF LAST RESORT
Curaçao court as court of last resort for civil matters
An attachment on assets located in Curaçao generally establishes jurisdiction over the cause of action for which the attachment is made, also if neither of the parties involved are domiciled in Curaçao.
According to Section 767 of the Curaçao Code of Civil Procedure, the Curaçao court is competent to hear a case on the merits (i.e. has (international) jurisdiction) if there are no other means of obtaining an enforceable order in Curaçao (first condition).
This condition will not be met if, for instance, in respect of a claim an arbitrator (e.g. appointed by the International Chamber of Commerce; ICC) has assumed (or is likely to assume) jurisdiction in respect of such claim. With regard to a decision of the ICC, leave to enforce can be obtained in Curaçao under Section 1020 of the Curaçao Code of Civil Procedure in conjunction with Sections 35 and 36 of the UNCITRAL Model Law on International Commercial Arbitration. Also, if there is a treaty in place with respect to the recognition and enforcement of foreign court orders, the condition will not be met.
The second condition is that the court must have granted leave to levy an attachment (whether or not that the attachment was lifted or prevented in exchange for security). It is irrelevant whether the security will be provided in Curaçao or elsewhere. Incidentally, if a party levying an attachment fails to file the principal claim in time, that does not render the attachment null and void, but causes the attachment to lapse.
Suppose that there is a dispute involving a ship and that this ship will be attached, and such attachment will be lifted in exchange for security. The fact that the ship may have left Curaçao once the claim on the merits has been instituted does not mean that the court of Curaçao no longer has jurisdiction.
Karel Frielink
Attorney (Lawyer) / Partner
(9 December 2013)
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