FOREIGN COMPANIES IN CURACAO BANKRUPTCY PROCEEDINGS
Principle of universality
In Curaçao, bankruptcy in general serves the purpose of liquidating assets of a particular person or legal entity and distributing the proceeds among the combined creditors. Under Curaçao insolvency law, the Curaçao courts have jurisdiction in respect of insolvency proceedings against legal entities that have their corporate seat in Curaçao and against any legal entity that carries on business or professional activities through an office in Curaçao. A foreign party can therefore be declared insolvent in Curaçao if it has a branch office in this jurisdiction. Whether or not a concurrent insolvency proceeding against that foreign party …
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PRELIMINARY RELIEF PROCEEDINGS
When a case needs an urgent decision
The procedure for provisional measures in summary proceedings (kort geding), a.k.a. preliminary relief proceedings or interlocutory proceedings, is an interim injunction procedure before the court. Such proceedings, under Dutch Caribbean 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 …
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SYMPOSIUM ON 35 YEARS OF THE CURACAO BAR ASSOCIATION (16 NOVEMBER 2012)
Presentation by Karel Frielink – President (part 2)
Civil Litigation Law should be better
So now I will deal with the subject of this symposium. I begin straight away with a provoking statement: Our Civil Litigation Law should be better. This goes further than it ‘could’ be better. However, we shouldn’t only think about the question of how the law should be improved but also about the question of whether or not judges and advocates (attorneys, lawyers) are operating optimally and whether adjustments to the system can contribute to a better operation and to a better administration of justice. And …
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PRESENTING FACTS IN DUTCH CARIBBEAN COURT PROCEEDINGS
Facts must be presented fully and truthfully
Legal proceedings are initiated by a petition filed with the Courts. A petition is a document stating, among other things, the names and addresses of the parties, the nature of the dispute (including the relevant facts of the case), the competent court, and the demand for relief.
The significance of the petition should not be underestimated. Filing a petition with the court stops the statute of limitations running for that case. A petition should clearly state the facts and specify the relief sought, in order to enable the court to render a default …
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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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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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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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PRE-TRIAL MOTIONS IN THE DUTCH CARIBBEAN
Differences with the United States
Netherlands Antilles civil proceedings differ substantially from those in the United States. In the Dutch Caribbean 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 the Netherlands Antilles either. There are, however, so-called incidents or ancillary proceedings in the Dutch Caribbean.
An ancillary proceeding may be a separate procedural step …
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A JOINDER BETWEEN PARTIES IN THE DUTCH CARIBBEAN
An interest must be proved
When two parties are involved in legal proceedings a third party may request permission to join the proceedings thereby to joining with one party in raising defense against the other (‘voeging’). Alternatively, a third party may request permission to intervene (‘tussenkomen‘) in pending proceedings, in which case neither party is joined.
The Dutch Supreme Court (May 3, 1957, NJ 1959, nr. 62) ruled that a joinder between parties in pending proceedings may only be sustained if the party requesting the joinder have an evident interest in supporting one of the parties’ positions, and thus in …
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