ATTACHMENTS UNDER THE LAWS OF CURACAO (part II)

Defendant has to show that the claim is invalid

Article 705, Paragraph 2 of the Curaçao Code of Civil Procedure states that the lifting of an attachment may be ordered if it appears summarily that the claim is invalid.

According to existing case law of the Dutch Supreme Court (see for instance Supreme Court dd June 14, 1996, NJ (Dutch Law Reports) 1997, 481), this means that the plaintiff (i.e. the party requesting the attachment be lifted in summary proceedings), with due regard for the limitations of summary proceedings, should establish a prima facie case (aannemelijk maken) that the alleged …
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07
Oct 2015
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ATTACHMENTS UNDER THE LAWS OF CURACAO (part I)

Freezing assets is rather easy

Under Curaçao 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 Curaçao 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 …
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29
Sep 2015
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PREJUDGMENT ATTACHMENT IN CURACAO

A petition is only marginally examined

How easily can one obtain permission to freeze assets? The Curaçao Code of Civil Procedure provides the possibility to seize and freeze assets in anticipation of a court order to pay a certain amount or to return certain goods. This legal remedy is referred to as prejudgment attachment or seizure (“conservatoir beslag“).

In general, a petition for the attachment of assets is (more or less) only marginally examined by the court and will therefore be granted in most cases. The claimant must then submit a writ of summons or claim form to the court, …
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28
Jun 2013
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CURACAO MINISTER OF JUSTICE VERSUS PROCURATOR GENERAL

A Minister should not interfere in a criminal investigation

On 25 April 2012 the Curacao Minister of Justice (‘MofJ‘) Elmer ‘Kadè’ Wilsoe submitted an official request in a letter to the American Minister of Foreign Affairs Hillary Clinton to raise the attachment of the bank balances of lottery owner Dos Santos in the United States. Those attachments were made at the request of the Public Prosecutions Department (‘PPD‘) in Curacao in connection with a current criminal investigation (the ‘Bientu investigation‘).

However, a Minister should not interfere in a criminal investigation. Strict rules apply to this. And once a criminal case …
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16
May 2012
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Various

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STANDARDS OF DUE PROCESS APPLICABLE IN THE DUTCH CARIBBEAN

The Supreme Court applies strict standards

In respect of the standards of due process applicable in the Netherlands Antilles and Aruba, the European Convention for the Protection of Human Rights and Fundamental Freedoms (EVRM) applies, including article 6, which safeguards the right of due process.

The first sentence of article 6 EVRM reads as follows: ‘In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law’.

The requirement of a ‘fair hearing’ has …
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07
Sep 2010
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LITIGATION AND SEIZURE

A comparison of Dutch and Dutch Antillean law

The intention of article 39 of the Kingdom Charter is to harmonize several fields of law, one of which being the Code of Civil Procedures, in the three territories of the Kingdom. There are, however, a number of differences between Dutch and Dutch Antillean law. One of the differences concerns the  procedure of imposing a prejudgment attachment on assets of a debtor.

If a creditor is of the opinion that he has a legitimate claim on the assets of a debtor, he can request that the court orders a prejudgment attachment on such assets. …
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13
Jul 2010
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THREE QUESTIONS ABOUT DUTCH CARIBBEAN PREJUDGMENT ATTACHMENT

FAQ

Question 1

How easily can one obtain permission to freeze assets?

The Netherlands Antilles Code of Civil Procedure provides the possibility to seize and freeze assets in anticipation of a court order to pay a certain amount or to return certain goods. This legal remedy is referred to as prejudgment attachment or seizure (conservatoir beslag). 

In general, a petition for the attachment of assets is only marginally examined by the court and will therefore be granted in most cases. The claimant must then submit a writ of summons or claim form to the court, within a period determined by the court, …
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23
Dec 2008
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