LIFTING OF AN ATTACHMENT UNDER THE LAWS OF THE DUTCH CARIBBEAN (II)
Defendant has to show that the claim is invalid
Article 705, Paragraph 2 of the Netherlands Antilles Code of Civil Procedure states that the lifting of an attachment may be ordered if it appears summarily that the claim is invalid.
According to existing case law of the Dutch Supreme Court (see for instance Supreme Court dd June 14, 1996, NJ (Dutch Law Reports) 1997, 481), this means that the plaintiff (i.e. the party requesting the attachment be lifted in summary proceedings), with due regard for the limitations of summary proceedings, should establish a prima facie case (aannemelijk maken) that the …
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LIFTING OF AN ATTACHMENT UNDER THE LAWS OF THE DUTCH CARIBBEAN (I)
Freezing assets is rather easy
Under Netherlands Antilles law any party with a prima facie claim may file a petition for a court order granting an attachment, which petitions are generally granted, solely based on the allegations in the petition. It is not required, under Netherlands Antilles law, that the litigant needs to demonstrate that, in absence of an attachment, there is a risk that the defendant would have insufficient assets to pay a judgment, as a threat of evading a judgment (by moving assets etc.) does exist.
Only with respect to some types of assets, such as registered shares …
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SUMMARY PROCEEDINGS IN THE DUTCH CARIBBEAN (IV)
Only condemnatory judgments are allowed
As far as the form and the content of a decision in summary proceedings is concerned, the judge has great latitude in reaching a decision. A guiding principle for the judge will always be a policy of not going beyond what might be necessary or well-balanced as far as the decision in the procedure on the merits is concerned. In principle, however, the judge may order any measure provided that the measure serves to safeguard a right or a legally recognized interest.
Legal literature is of the opinion that in summary proceedings only condemnatory judgments …
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SUMMARY PROCEEDINGS IN THE DUTCH CARIBBEAN (III)
Judge will balance interests
In general the court will take into account the detriment which the plaintiff in summary proceedings will suffer if he has to wait too long for a judgment in a procedure on the merits.
In summary proceedings the judge needs to balance the interests of the plaintiff and the defendant. In practice, this balancing of interests plays an important role in the procedure. The judge may dismiss a claim in summary proceedings if the consequences for the defendant would be too drastic. An important factor will be the probability of a positive or negative decision on …
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SUMMARY PROCEEDINGS IN THE DUTCH CARIBBEAN (II)
Urgency is a requirement
Provisional measures may always be given in summary 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 summary proceedings.
The fact that the judge in summary proceedings (hereafter: “the judge”) is formally competent to render a decision, does not imply that he will accept the claim or will decide in favor of it. The nature of summary proceedings implies that the case not only needs …
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SUMMARY PROCEEDINGS IN THE DUTCH CARIBBEAN (I)
Attempting to obtain temporary instructions from the court
The procedure for provisional measures in summary proceedings (in Dutch: kort geding), a.k.a. interlocutory proceedings, is an interim injunction procedure before the court. Such proceedings, under Netherlands Antilles law, are aimed at obtaining temporary instructions from the court, not at receiving a final decision in the case.
These proceedings are characterized by their more or less summary character and their relatively quick nature. There is a clear relationship to a procedure on the merits, which always may be instituted and sometimes even must be followed. Provisional measures that are prescribed in summary …
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UNLAWFUL ACTS UNDER ARUBAN LAW
Several requirements apply
Article 6:162 section 1 of the Aruba Civil Code (Aruba CC) stipulates four conditions for someone’s obligation to compensate damage based on an unlawful act (tort):
Article 6:163 Aruba CC provides for an exception to the general rule of article 6:162 Aruba CC: “There is no obligation to repair damage when the violated norm does not have …
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WHAT DAMAGES ARE RECOVERABLE UNDER ARUBAN LAW? (II)
Case law
The Supreme Court in its case law has held that relatives of a deceased person are only entitled to sue for damages against the person liable for his or her death, if and to the extent that their death has left them in need. The extent of need is measured by the standard of living of the surviving relatives during the life of the deceased. See, for example, Supreme Court dated December 13, 1985 and Supreme Court dated February 28, 1986. This rule may be considered one of the fundamental principles and values of the Aruban legal system, …
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WHAT DAMAGES ARE RECOVERABLE UNDER ARUBAN LAW? (I)
Nature and extent determined by the Civil Code
When considering the nature and extent of damages that are recoverable under Aruban law, the point of departure is Book 6, Title 1 (Obligations in General), Section 10 (Legal Obligations to Make Reparation of Damage), Article 95 of the Aruban Civil Code which states: ‘the damage which must be repaired pursuant to a legal obligation to make reparation consists of material damage and other harm (i.e., immaterial damage), the latter to the extent that the law grants a right to reparation thereof’.
Pursuant to Article 96, Paragraph 1, material damage comprises both …
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THE LAWS OF TORT IN THE DUTCH CARIBBEAN
Unlawful acts and damage
Section 6:162 paragraph 1 Netherlands Antilles Civil Code (NACC) stipulates four conditions for someone’s obligation to compensate damage based on an unlawful act (tort):
Section 6:163 NACC provides for an exception to the general rule of Section 6:162 NACC: “There is no obligation to repair damage when the violated norm does not have as its …
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