Recognition and enforceability

In the absence of an applicable treaty between foreign countries (for example the U.S.) and Curacao, a judgment (in a civil matter) rendered by a U.S. court will not be enforced by the courts of Curacao. The Treaty of Friendship, Commerce and Navigation between the United States of America and the Kingdom of the Netherlands (which entered into force December 5, 1957) does not govern general recognition of Curacao and U.S. judgments in each of the countries. In order to obtain a judgment which is enforceable in Curacao the claim must be re-litigated before the Curacao courts.

Nevertheless, a judgment rendered by a U.S. Court will, under current practice, be recognized by the court of Curacao

  • if the U.S. Court has assumed jurisdiction on any internationally accepted grounds of jurisdiction;
  • if the judgment is flows from proceedings compatible with Curacao concepts of due process, and
  • if the judgment does not contravene Curacao public policy.

If the judgment is recognized by a Curacao court, the court will generally grant the same judgment without re-litigation on the merits. However, the enforcement of a U.S. court judgment in Curacao concerning discovery proceedings (a general requirement for production of documents) will be subject to the rules of civil procedure as applied by Curacao courts. There is therefore a realistic chance that a U.S. judgment on discovery proceedings, a concept unknown in Curacao, will not be recognized.

To comply with requirement a., the U.S. court must have jurisdiction to hear the case. This will not be measured by U.S. or Curacao international private law, but by looking at whether the U.S. court has jurisdiction on an internationally generally accepted basis for jurisdiction. It goes without saying that the parties to the proceedings to enforce the U.S. judgment in Curacao must be identical to the parties to the original U.S. proceedings.

As to requirement b., it is required that the foreign proceedings meet the standards of due process in accordance with those imposed by Curacao law, e.g. timely and effective service of process enabling the defendant time to adequately defend himself, equal treatment of both parties, in particular the principle of hearing both sides of the argument (hoor en wederhoor) and due investigation of the point of view of both parties.

Finally with regards to requirement c., this public policy requirement applies not so much to the contents of the foreign judgment as to the consequences of recognizing it in Curacao. It therefore depends on the circumstances of the case. The public policy exemption does not allow the courts of Curacao to refuse to recognize the U.S. judgment because it would itself have rendered a different judgment.

Curacao public policy refers to the fundamental legal principles of our legal system. This exemption will only apply if in the given circumstances recognition of the foreign judgment result in consequences that cannot be allowed from a Curacao perspective. The public policy exemption will only be used in rare circumstances.

Karel Frielink
Attorney (Lawyer) / Partner

(21 September 2016)


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