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 and other registered securities, must an additional threshold condition be met: the creditor must demonstrate that there is a reasonable chance that the debtor will dispose of or encumber the assets and that therefore the proceeds thereof, or the assets in question, may not be available for payment of the creditor’s claims.

There are a number of grounds on which a debtor may (successfully) request the lifting of an attachment in summary proceedings.

The judge, will, for instance, always order lifting of an attachment if the judgment debtor offers sufficient alternative security (i.e., by way of a bank guarantee). Such a lifting order may also be given by the judge in the case of non-compliance with procedural requirements, such as prescribed statutory terms and (other) formalities, e.g. if the bailiff’s notification of the attachment does not meet the legal requirements, or if the plaintiff fails to instigate action on the merits, within the prescribed period.

Under Netherlands Antilles procedural law the attaching judge shall set down a timeframe in which the creditor must initiate legal proceedings on the merits. However, if so requested, the attaching judge may grant an extension of the term. If the creditor fails to initiate the proceedings on the merits within the prescribed period, the attachment will be void.

Further, an order to lift an attachment may be given if the attachment was put on assets which (by nature) are not subject to attachments, or if the party whose assets are attached is not the debtor (e.g. in the case of beneficial ownership). Another ground for such an order may be if it appears in summary proceedings that the attachment is unnecessary. A question in this respect may be whether or not the attachment is vexatious. If so, then the attachment may be lifted on the basis that the attachment has no real meaning for the judgment creditor while it does harm the interests of the judgment debtor.

Karel Frielink / Ursus van Bemmelen
Netherlands Caribbean Attorneys / Lawyers

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