LITIGATION IS A SKILLED PROFESSION (part 3)

Foreign law

It often happens that for instance the court in Curacao has jurisdiction to hear a case but the claim is governed by the law of another country. In that case the court must be informed of the contents of that foreign law by the parties. Obviously, before you institute these proceedings you must have examined whether your claim has any chance of success. And you have to consider the question of what you will do if the claim is awarded by the court in Curacao but you have to go abroad for enforcement of that judgment. Sometimes you can then use an international enforcement convention (treaty) but sometimes you have to conduct the case again abroad (in an abbreviated form).

Once you have found the right court, it is important that the claim is lodged in the proper manner. There are a lot of rules in that area as well. It is not only important that the names of the parties are correct, but also for instance that the claim and the grounds on which it is based are clearly described and that it is indicated what evidence is present but also that there is a clear formulation of what exactly is being asked of the court. The question should also be considered of whether for instance the imposition of a penalty can and should be demanded.

It is usually also important that the plaintiff asks the court to declare its judgment provisionally enforceable (uitvoerbaar bij voorraad). This means that if the claim of the plaintiff is awarded but the defendant appeals from it, the plaintiff nevertheless can enforce the judgment. If the plaintiff forgets to demand this from the court, that appeal will have a suspensory effect. And as the plaintiff you should not forget to demand that the court orders the defendant to pay the court costs. Incidentally this does not cover all the court costs of the plaintiff and in addition, the court will in principle only allow such a claim if it also awards the principal claim. (To be continued)

Karel Frielink
Attorney (Lawyer) / Partner

(10 May 2013)

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