PRELIMINARY RELIEF PROCEEDINGS IN THE DUTCH CARIBBEAN
A.K.A. Summary Proceedings or Interlocutory Proceedings
The procedure for provisional measures in summary proceedings (kort geding), or preliminary relief proceedings or interlocutory proceedings, is to request an interim injunction before the court. Such proceedings, under the laws of Aruba, Bonaire, Curaçao, St. Maarten, St. Eustatius and Saba, are aimed at obtaining temporary instructions from the court, not at receiving a final decision in the case.
Provisional remedies may be permitted in preliminary relief proceedings in civil cases if the claim meets the following three conditions: (i) there is an urgent interest at stake; (ii) the interests of both parties needs to be balanced; and, (iii) the balancing of interests justifies a decision in preliminary relief proceedings.
The judge has broad discretion in deciding the necessity of allowing a proceeding in preliminary relief proceedings. It is within his competence to decide whether a case requires an urgent decision and dealt with in preliminary relief proceedings. The requirement that the requesting party seeks relief urgently implies that waiting for a judgment in a procedure on the merits may cause great or irreparable damage.
In preliminary relief proceedings, the judge balances the interests of the plaintiff against those of the defendant. In practice, this balancing of interests plays an important role in the procedure. The judge may dismiss a claim in preliminary relief proceedings if the consequences for the defendant would be too burdensome. An important factor is the likelihood of whether the plaintiff will ultimately be successful on the merits. If the plaintiff is unable to sufficiently prove his claim or the case is deemed too complicated, the judge will not reach a decision in preliminary relief proceedings.
A preliminary relief proceeding does not necessarily have to be followed with a claim in a normal proceedings; the provisional measure is valid and enforceable with or without initiating such proceedings on the merits, unless the Court directs the plaintiff, as part of the preliminary relief, to file a petition in regular proceedings within a certain period of time.
Karel Frielink
(Lawyer/Attorney)
(6 January 2021)
.
