RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENTS
Recognition is usually not a problem
In the absence of an applicable treaty between foreign countries and the Dutch Caribbean, a judgment rendered by an international court from a country without a treaty will not be enforced by the courts of any Dutch Caribbean countries. In order to obtain a judgment which is enforceable in the Dutch Caribbean, the claim must be re-litigated before the court being sought to enforce the judgment.
Nevertheless, a judgment rendered by an international court without a treaty will, under current practice, be recognized by a Dutch Caribbean court:
- if the international court has assumed jurisdiction on any internationally accepted grounds of jurisdiction;
- if the judgment flows from proceedings compatible with Dutch Caribbean concepts of due process, and
- if the judgment does not contravene Dutch Caribbean public policy.
If the judgment is recognized by a Dutch Caribbean court, the court will generally grant the same judgment without re-litigation on the merits.
However, the enforcement of a foreign court judgment in the Dutch Caribbean concerning discovery proceedings will be subject to the rules of civil procedure as applied by Dutch Caribbean courts. There is a realistic chance that an international judgment on discovery proceedings, a concept unknown in the Dutch Caribbean, will not be recognized.
To comply with requirement 1, the international court must have jurisdiction to hear the case. This will not be measured by the foreign or domestic international private law, but by looking at whether the foreign court has jurisdiction on an internationally generally accepted basis for jurisdiction.
As to requirement 2, it is required that the foreign proceedings meet the standards of due process in accordance with those imposed by Curacao law; timely and effective service of process enabling the defendant time to adequately defend himself, equal treatment of both parties, in particular the principle of hearing both sides of the argument (hoor en wederhoor) and due investigation of the point of view of both parties.
Finally, in regard to requirement 3, this public policy requirement applies not so much to the contents of the foreign judgment as to the consequences of recognizing it in the Dutch Caribbean. It therefore depends on the circumstances of the case. The public policy exemption does not allow the courts of the Dutch Caribbean to refuse to recognize the foreign judgment because it would itself have rendered a different judgment. Dutch Caribbean public policy refers to the fundamental legal principles of our legal system. This exemption will only apply if in the given circumstances recognition of the foreign judgment result in consequences that cannot be allowed from a Dutch Caribbean perspective. The public policy exemption will only be used in rare circumstances.
The Kingdom of the Netherlands, which in this case also includes Aruba, Curacao and St. Maarten, is a party to various treaties, including the Convention between the Kingdom of the Netherlands and the United Kingdom of Great Britain and Northern Ireland providing for the Reciprocal Recognition and Enforcement of Judgments in Civil Matters of The Hague, 1967.
The enforcement in the Dutch Caribbean of an arbitral award rendered abroad will be subject to the provisions of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards of New York, 1958.
Karel Frielink
(Attorney)
(7 May 2019)
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Ps
I am the representative of ICC’s FraudNet for the Dutch Caribbean (Aruba, Bonaire, Curacao, St. Maarten, St. Eustatius and Saba). FraudNet is an international network of independent lawyers who are the leading civil asset recovery specialists in each country. FraudNet is operating under the aegis of the International Chamber of Commerce.
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