Appellate proceedings in the Dutch Caribbean provide for a full review of the appealed decision: the grounds on which the Appellate Court can reverse the original judgment are not, as in certain other jurisdictions, limited to procedural matters. It is furthermore permissible to introduce new documentary evidence in the course of appellate proceedings. If the appealed judgment contains a final decision as regards the dispute the Appellate Court will either confirm the judgment or it will itself render a replacing decision: the case will not be referred back to the Court of First Instance.

Furthermore, the examination of witnesses may be ordered by the Appellate Court at the request of one of the parties if the facts sought to be proven are material to the case. The Appellate Court may also order the examination of witnesses on its own initiative.

Karel Frielink
Attorney (Lawyer) / Partner

(21 December 2011)
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According to the SOSIB a “life insurance agreement” is an insurance contract concerning the payment of cash benefits related to the life or death of man, and a “general insurance contract” is an insurance contract, other than a life insurance contract.

Generally, an insurance contract is understood to be an agreement whereby an insurer commits itself to the insured, against receipt of a premium, to compensate the latter for a loss, damage or loss of expected advantage which the insured could suffer as a result of an uncertain event.

There is no existing case-law or regulatory directive in Aruba offering any direct guidance as to the question whether a variable annuity constitutes an insurance product. We feel there is a strong argument that where the annuity pays out beginning at a certain date but not necessarily based on an event of loss, damage or expected disadvantage (e.g. it is not a death or disability benefit but merely an investment that pays out in the future) and where the amount of payout varies based on the value of the assets (foreign securities) purchased in the annuity, this type of variable annuity would be a security rather than an insurance product. If there is a death benefit or a payout based on an uncertain event (contingency), this argument becomes more difficult based on the aforementioned definition.

Karel Frielink
Attorney (Lawyer) / Partner

(14 December 2011)

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The Central Bank of Aruba supervises insurers incorporated in Aruba and the branches and agencies in Aruba of insurers incorporated outside Aruba based on the State Ordinance on the Supervision of the Insurance Business (SOSIB).

The SOSIB, effective since 2001, stipulates that life and non-life insurance business must be carried out by separate legal entities. The Central Bank of Aruba shall decide whether an action or a combination of actions does or does not constitute as being engaged in the life insurance business or the general insurance business, and whether an action or a combination of actions does or does not constitute as being engaged in the insurance business from an establishment in Aruba.

Except for anti-money laundering regulations, there is no regulatory system in place with respect to insurance brokers. However, supervision of insurance brokers is included in the draft of the revised SOSIB.

Without a license from the Central Bank it is prohibited to approach any member of the public in or from Aruba regarding the direct or indirect engagement in the insurance business. If an insurer domiciled abroad intends to perform his activities in Aruba by means of a representative, it shall appoint a natural person or legal entity residing or domiciled, respectively, in Aruba (Section 1(1) State Decree Representative Insurance Companies).

Karel Frielink
Attorney (Lawyer) / Partner

(5 December 2011)

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The Basic Priciples on the role of lawyers were adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990.

According to the preambule professional associations of lawyers have a vital role to play in upholding professional standards and ethics, protecting their members from persecution and improper restrictions and infringements, providing legal services to all in need of them, and cooperating with governmental and other institutions in furthering the ends of justice and public interest, The Basic Principles on the Role of Lawyers, which have been formulated to assist Member States in their task of promoting and ensuring the proper role of lawyers, should be respected and taken into account by Governments within the framework of their national legislation and practice and should be brought to the attention of lawyers as well as other persons, such as judges, prosecutors, members of the executive and the legislature, and the public in general.

One of the main purposes of the Basic Principles is to assist States in their task of promoting the proper role of lawyers and ensuring lawyers’ functioning without any improper interference. Rules 16 and further deal with the guarantees for the functioning of lawyers. Rule 16:

Governments shall ensure that lawyers ( a ) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference; ( b ) are able to travel and to consult with their clients freely both within their own country and abroad; and ( c ) shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics.

Rule 23 of the Basic Principles:

Lawyers like other citizens are entitled to freedom of expression, belief, association and assembly. In particular, they shall have the right to take part in public discussion of matters concerning the law, the administration of justice and the promotion and protection of human rights and to join or form local, national or international organizations and attend their meetings, without suffering professional restrictions by reason of their lawful action or their membership in a lawful organization. In exercising these rights, lawyers shall always conduct themselves in accordance with the law and the recognized standards and ethics of the legal profession.

Information on the Basic Principles, including literature and case law, is fragmented and not easily accessible. Lawyers for Lawyers seeks to alter this and has created a database to remedy the situation. For further information click here.

Karel Frielink

(10 November 2011)

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Each year, LexisNexis honors a select group of blogs that set the online standard for a given industry. Karel’s Legal Blog  is one of the nominated candidates for the Top 25 International & Foreign Law Blogs of 2011, featured on the LexisNexis International & Foreign Law Community.

Karel Frielink

(1 November 2011)

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According to Article 55, par. 1 of the Curacao Code of Civil Procedure, opposition (in the case of a default judgment) or appeal (in the event of adversarial proceedings) prevent the enforcement (execution) of a judgment unless the decision is ‘enforceable notwithstanding opposition or appeal’ a.k.a. a judgment which is declared ‘immediately enforceable’ (‘uitvoerbaar bij voorraad is verklaard’). 

The submission of an appeal results, therefore, in a stay of execution, unless the first-instance court, on a motion by one of the parties, has declared its judgment enforceable even if it is challenged in a manner which would otherwise result in a stay of execution.

As far as ordinary recourse is concerned, the Judgment will be final and binding if no ordinary legal remedy is available, i.e., (i) when the period for instituting appeal proceedings has expired without an appeal being filed, or (ii) in the case of appeal proceedings have been instituted properly and in time, when the Judgment is upheld by the Joint Court of Appeal and the period for instituting cassation proceedings with the Supreme Court has expired and no cassation has been filed, or (iii) if cassation proceedings have been instituted properly and in time, when the Judgment is upheld by the Supreme Court.

Karel Frielink
Attorney (Lawyer) / Partner

(1 October 2011)

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The judicial system of the various islands in the Dutch Caribbean (Aruba, Bonaire, Curacao, St. Maarten, Saba and St. Eustatius) is independent, has a long history, and is well developed. It is capable of resolving complex commercial disputes in a just and efficient manner. The judges in the Dutch Caribbean are well-trained, professional judges.

In general, parties in civil proceedings have the right to appeal to the Joint Court of Appeal of Aruba, Curacao and St. Maarten and of Bonaire, Sint Eustatius en Saba (‘Gemeenschappelijk Hof van Justitie van Aruba, Curacao en St. Maarten en van Bonaire, St. Eustatius en Saba’) and to further appeal to the Supreme Court of the Netherlands (‘de Hoge Raad der Nederlanden’). The Supreme Court of the Netherlands is the highest court for the Netherlands and the Dutch Caribbean.

The interpretation of the laws of the islands of the Dutch Caribbean is based on the wording of the law itself, parliamentary history and prior judgments of the Supreme Court of the Netherlands (and to some extent of the lower courts in the Kingdom).

It should be added that to anyone not accustomed to Dutch Caribbean litigation practice, judgments on the merits as rendered by the courts in the Dutch Caribbean may appear to be rather short. Generally speaking and compared to the practices in many other jurisdictions, Dutch Caribbean judgments have a tendency to be quite brief. The brevity of such judgments should not be taken as any indication that they are of a temporary or summary nature only.

Karel Frielink
Attorney (Lawyer) / Partner

(21 September 2011)

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In general, Curacao labor law provides for the following ways to terminate an employment agreement: (i) termination by giving notice, (ii) dissolution by the Courts and (iii) termination by mutual consent.

Prior to giving notice, an employer must obtain a permit from the Director of the Directorate of Labor Affairs. The Director will determine whether there is a valid reason for the dismissal. In the case of redundancy the employer is obliged to provide a detailed financial justification thereof. If in agreement, the Director of the Directorate of Labor Affairs may issue a permit bound to certain conditions, such as stipulating that the employee be offered an equitable compensation.

In order to be able to assess the financial impact of a possible redundancy, a redundancy plan must be drawn up. First of all, to justify the proposed redundancy, a detailed financial justification and description of the necessary restructuring or discontinuation of the business operation must be prepared. Secondly, it must be determined which employees are eligible for dismissal. In general the employer needs to observe certain principles. For employees with the same or interchangeable positions, the employer must adhere to the proportionality principle. According to the proportionality principle, all employees with the same (or interchangeable) positions are divided into age groups. Per age group, the principle ‘Last In, First Out’ (LiFo) is then applied.

Under certain circumstances the Curacao Courts may dissolve the employment agreement if there is justifiable cause (including a change of circumstances) for the employment agreement to be reasonably discontinued. A redundancy (provided there are sound financial reasons) is, in principle, considered justifiable cause. A business closure may also be a valid reason, depending on the motives for winding down the business. An economic justification is not always required to close down a business.

Employment contracts may also be terminated by mutual consent. The latter is of course preferable. It usually involves offering the employee a severance package to compensate the employee for the loss of employment.

Karel Frielink
Attorney (Lawyer) / Partner

(16 August 2011)

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When considered in the perspective of the laws of Curacao, the reliance on or the enforcement of contractual terms and conditions contained in any agreement, may under certain circumstances be contrary to the overriding principle of ‘fairness and reasonableness’ (redelijkheid en billijkheid) which governs the relationship between the parties to an agreement. Prof. Tjittes calls this good faith principle the Rhythm & Blues of our legal system.

Civil law systems such as the Dutch, French, German, or our system, explicitly espouse and apply this principle, whereas common law systems (e.g. English common law) do not recognise a general doctrine of good faith. Let’s see how this principle affects existing contracts.

This principle may affect, inter alia, the reliance on and/or enforcement of contractual provisions such as the following (without any limitations): 

1. any provisions in a contract or document which provide that certain calculations or certificates shall be conclusive and binding; such provisions will not be effective if such calculations or certificates are founded on an arbitrary or unreasonable basis or are fraudulent or manifestly inaccurate; and will be open to judicial enquiry into the merits arising from any claim by any party thereto;
2. any provision of any such contract or document vesting any party with a discretion or the power to determine a matter in its opinion with binding effect on the other party or parties; the laws of Curacao may require that such discretion or power be exercised reasonably or that such opinion is based on reasonable grounds; and
3. any provision of any such contract or document stating that failure or delay in exercising any rights or remedies shall operate as a waiver of such rights or remedies (to the effect that under normal circumstances a delay or failure to exercise a right within the contractual period of time may operate as a bar to exercising such rights or remedies thereafter).

Furthermore, such principle of fairness and reasonableness may in the proper circumstances impose certain additional duties upon the parties concerned, notwithstanding any provision to the contrary.

Karel Frielink
Attorney (Lawyer) / Partner

(7 August 2011)

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In the absence of an applicable treaty between foreign countries (for example the U.S.) and Curacao, a judgment rendered by a U.S. court will not be enforced by Curacaoan courts. 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 a Curacaoan court

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

If the judgment is recognized by a Curacaoan 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 1, 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.

As to requirement 2, 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 3, 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 Curacaoan courts to refuse to recognize the U.S. judgment because it would itself have rendered a different judgment. Curacaoan 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

(30 July 2011)

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