STANDARDS OF DUE PROCESS APPLICABLE IN THE DUTCH CARIBBEAN

The Supreme Court applies strict standards

In respect of the standards of due process applicable in the Netherlands Antilles and Aruba, the European Convention for the Protection of Human Rights and Fundamental Freedoms (EVRM) applies, including article 6, which safeguards the right of due process.

The first sentence of article 6 EVRM reads as follows: ‘In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law’.

The requirement of a ‘fair hearing’ has …
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07
Sep 2010
CATEGORY

Legal

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THE DUTCH CARIBBEAN INCORPORATION DOCTRINE

The courts apply the law of the state where the legal entity was incorporated

The Netherlands Antilles adheres to the Incorporation Doctrine (Netherlands Antilles State Ordinance of 9 September 1960, which entered into force on the 10th of September 1960, P.B. 1960, 166). According to this doctrine, the internal affairs of a corporation are governed solely by the laws of the state in which it was formally incorporated. This doctrine was confirmed in the cases of Natco Trust v. mr Thesseling q.q., Hoge Raad (Dutch Supreme Court) 20 April 1990, NJ 1991, 560; TAR-Justicia 1 (1991), p. 24-35, and IBC …
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31
Aug 2010
CATEGORY

Corporate

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SCANNED EVIDENCE UNDER THE LAWS OF THE DUTCH CARIBBEAN

Electronic files will not be disregarded as evidence

A Netherlands Antilles or Aruban court may only base its decision on facts. An alleged fact that is not disputed by the parties is considered to be such a fact, even if it does not correspond with reality. For example, if both parties state that they were involved in a fight in Curacao, the court will assume the correctness thereof, although both parties know that the fight was actually in Bonaire. Furthermore, facts can be proven in the course of the proceedings, e.g., by showing the court an official extract of a …
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10
Aug 2010
CATEGORY

Legal

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SEE YOU IN COURT?

Arbitration as an alternative for settling disputes in Curacao

Parties with a legal dispute can turn to the public court system to settle the dispute; however, instead of bringing a lawsuit in a public court, they can also opt for arbitration. Arbitration is a form of private dispute settlement in which the parties instruct one or more persons (arbitrators) to render a binding decision on their dispute. The arbitrators may be jurists, but they can also be laypersons. People with specific expertise or experience in a certain branch or industry are often chosen as arbitrator.

Parties …
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04
Jun 2010
CATEGORY

Legal

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COMMENCING PROCEEDINGS AGAINST MULTIPLE DEFENDANTS IN THE DUTCH CARIBBEAN

Non-residents can be sued

A general rule under the Netherlands Antilles code of civil procedure is that the Curacao court (or another court in the Dutch Caribbean as the case may be) has jurisdiction over defendants which are (in this example) Curacao residents or companies with an office in Curacao. In the case of multiple defendants, there is a general rule to the effect that if a Netherlands Antilles court has jurisdiction over one of the defendants (i.e., where the defendant has its corporate seat or domicile) it has jurisdiction over all defendants, including non-Netherlands Antilles residents or companies in cases …
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28
May 2010
CATEGORY

Legal

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PRE-TRIAL MOTIONS IN ARUBA

Differences with the United States

Civil proceedings in Aruba differ substantially from those in the United States. In Aruba there are, for instance, no juries. In principle, legal proceedings are basically conducted in writing. Oral pleadings are customary in preliminary relief proceedings, but optional in proceedings on the merits. Discovery proceedings like those in the United States do not exist. Pre-trial motions similar to those in the United States do not exist in Aruba either. There are, however, so-called incidents or ancillary proceedings in Aruba.

An ancillary proceeding may be a separate procedural step or an ancillary step within the …
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22
May 2010
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Legal

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THE THREE STAGES OF LEGAL PROCEEDINGS IN THE DUTCH CARIBBEAN

General observations regarding adversarial proceedings

All adversarial proceedings in the Dutch Caribbean shall be initiated by means of a petition to the Court of First Instance of the Netherlands Antilles or Aruba. Claims will be denied or rejected (afgewezen) by the Court if ruled that they are unfounded. If a claim is denied for reasons other than the merits of the claim then the claimant’s complaint will be declared non-admissible (niet-ontvankelijk). In exceptional cases the petition will be declared void and in some cases the court may rule that it is not competent to hear the case.

An appeal can …
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17
Apr 2010
CATEGORY

Legal

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ORDINARY ADVERSARIAL VERSUS SUMMARY PROCEEDINGS IN THE DUTCH CARIBBEAN

The court only considers the key issues

According to Article 110 and 111 of the Netherlands Antilles Code of Civil Proceedings (NACCP), all adversarial proceedings shall be initiated by means of a petition to the Court of First Instance. Proceedings so initiated are ordinary proceedings, unless the petitioner expressly opts for preliminary relief proceedings (kort geding) under article 226 NACCP. This article provides that in urgent cases which require an immediate decision the plaintiff may request a provisional decision (beslissing bij voorraad).

Article 229 NACCP provides that a provisional decision rendered as a result of this special type of proceeding …
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10
Apr 2010
CATEGORY

Legal

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OBITER DICTUM OR NOT?

Litigating twice on the same matter is not allowed

The Netherlands Antilles Code of Civil Procedure prevents parties from litigating twice on the same legal issue. The principle that a final judgment of a competent court is conclusive upon the parties in any subsequent litigation involving the same cause of action is known as ‘res judicata’. A Dutch court case is described below illustrating this principle: Utrecht District Court of 19 March 2009 (NJF 2009/291).

In initial litigation, the claimant had sought payment of certain contractual penalties. The Court of Appeals rejected the claim on two separate grounds, the first …
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27
Mar 2010
CATEGORY

Legal

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DUTCH CARIBBEAN LITIGATION AND THE ESTABLISHMENT OF FACTS

Failing to contest may make a fact true

Facts play an important role in civil litigation. Facts are established by the Court in First Instance of the Netherlands Antilles or Aruba and by the Joint Court of Appeal of the Netherlands Antilles and Aruba, not by the Supreme Court. A review by the Supreme Court is not a full review, but is limited to verifying that the Court whose judgment is under review has not breached Netherlands Antilles laws (or Aruban laws as the case may be) and that there have been no defects in the proceedings resulting in the …
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23
Mar 2010
CATEGORY

Legal

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CHAMBERS GLOBAL 2010 LAUNCHED

All-new law firm rankings

The Chambers Global 2010 was launched at the end of February 2010. You will find the all-new rankings and editorial on their website – www.chambersandpartners.com. The Chambers Global focuses on firms and lawyers who have truly international practices. This is what Chambers and Partners has to say about Spigthoff Attorneys & Tax Advisers Curacao:

This group has offices on Curaçao and in Amsterdam, which allows it to attract a great deal of work deriving from the Netherlands itself. With a focus on international financial deals and corporate work, the …
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16
Mar 2010
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Legal

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PREJUDICED INTERESTS OF MINORITY SHAREHOLDERS IN THE NETHERLANDS ANTILLES

They may force the company to take-over their shares

Article 2:251(1) of the Netherlands Antilles Civil Code reads as follows: “A shareholder of registered shares, whose rights or interests are prejudiced to such an extent, by the conduct of the company or one or more co-shareholders, that a continuation of his shareholding cannot reasonably be required of him, may institute a claim against the company for withdrawal, demanding that his shares be acquired against payment in cash”.

This provision may only be successfully triggered in exceptional circumstances. This could be the case if the company or co-shareholders have a structural policy …
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13
Mar 2010
CATEGORY

Corporate

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