LITIGATION IS A SKILLED PROFESSION (part 6)
Proceedings in various jurisdictions
Sometimes cases which are strongly interrelated to each other are brought before different courts. For instance you instigate proceedings with the court in Curacao and your counterparty instigates proceedings at the same time against you before the court in Aruba or in Sint Maarten. If the merits of the case involve the same dispute it would hardly be efficient if litigation would take place before two different courts. In that case there would also be a risk that contradictory judgments would be delivered. The Code of Civil Procedure provides for an arrangement with regard to referral …
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LITIGATION IS A SKILLED PROFESSION (part 5)
Duty to submit exhibits
It can of course happen that it is not a plaintiff but the defendant or a third party who has the documents by which the plaintiff can prove the existence and extent of his claim. There is a separate procedure by which such documents can be demanded. This procedure, better known as the duty to submit exhibits of Section 843a of the Code of Civil Procedure requires several conditions which must be satisfied before the court can allow that claim (exhibitieplicht).
Many other issues can play a role. I will mention a few. …
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LITIGATION IS A SKILLED PROFESSION (part 4)
Statement of Defense
As the defending party you have to put up a defense (Statement of Defense) and in this regard this statement should not only be clear and complete but you should also know for instance what formal defenses you should advance. With regard to the latter for instance the plea of limitation of action comes to mind. In many cases the period of limitation of action (verjaring) is five years but sometimes it is a much shorter period. The short period of limitation of six months applies to the annulment of a resolution of a legal entity registered …
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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 …
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LITIGATION IS A SKILLED PROFESSION (part 2)
Which court is competent to hear the case?
In order to answer the question of which court you should bring your action before, the type of claim can also be important. In Curacao you must bring your claim for collection of a sum of money or a dispute involving a take-over contract before the Court of First Instance. But if you start inquiry proceedings you should go to the Joint Court of Appeal. And if as a civilian you want inquiry proceedings to be brought against a State-owned company, the petition to this end must be submitted to the Public …
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LITIGATION IS A SKILLED PROFESSION (part 1)
Everything boils down to knowledge and experience
Litigation appears to be simple. For instance you have a monetary claim on someone (a private person or an enterprise) and you ask the court to determine in a judgment that you indeed have this claim. And you ask the court that the counterparty be ordered to pay the claim. And once you have this judgment, you can enforce it with the assistance of a bailiff (deurwaarder). This means for instance seizing a trade stock and selling it publicly in an auction. Simple, yes? Why then is litigation a discipline for which you …
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CHAMBERS AND PARTNERS QUALITY RANKINGS 2013
Spigt Dutch Caribbean still a number 1 firm
International publisher Chambers and Partners published its global ranking of law firms ‘Chambers Global’ on 14 March 2013. In its survey Chambers Global 2013, Chambers and Partners ranks Spigt Dutch Caribbean as Leading Firm.
Chambers in its survey:
This corporate heavyweight continues to attract plaudits for its wide-ranging expertise, and is particularly commended for its strength in tax and litigation work. The 13-strong team advises prestigious local and international clients on securities, …
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SYMPOSIUM ON 35 YEARS OF THE CURACAO BAR ASSOCIATION (16 NOVEMBER 2012)
Presentation by Karel Frielink – President (part 2)
Civil Litigation Law should be better
So now I will deal with the subject of this symposium. I begin straight away with a provoking statement: Our Civil Litigation Law should be better. This goes further than it ‘could’ be better. However, we shouldn’t only think about the question of how the law should be improved but also about the question of whether or not judges and advocates (attorneys, lawyers) are operating optimally and whether adjustments to the system can contribute to a better operation and to a better administration of justice. And …
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SYMPOSIUM ON 35 YEARS OF THE CURACAO BAR ASSOCIATION (16 NOVEMBER 2012)
Presentation by Karel Frielink – President (part 1)
Ladies and gentlemen!
Today the symposium on the “Seven years of the new Code of Civil Procedure” is taking place in honor of the 35th anniversary of the Curacao Bar Association. The 35-year existence of the Bar is an occasion for celebration which is quite rightly paid attention to by focusing on an important subject: litigation law. I will begin by telling you something about the early period of the Bar. After this and anticipating the discussions this afternoon, I will broach two subjects of litigation law which are eligible for improvement. …
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LEGAL ACTION AGAINST A CURACAO TRUSTEE
Who can bring an action?
If the trust assets have been prejudiced, the action can be brought by any co-trustee. Unless provided for to the contrary in the trust deed the action can also be brought by a protector or beneficiary on the understanding that the compensation is paid as soon as possible to a Trustee not being the Trustee who violated his duties (Section 3:143 subsection 4 Curacao Civil Code {‘CCC’}). The question is to whom the protector has to pay the compensation if there is no co-trustee. This question is not answered in legislation, but in practice in …
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MY VIEW ON THE LIABILITY OF A CURACAO TRUSTEE
The Reference Trustee
The trust originates from Anglo Saxon law. On designing the Curacao trust system the systems in other jurisdictions have obviously been studied. However, the Curacao trust is a civil law and not a common law trust. Therefore in answering the question of the (possible) extent of the liability as given shape in Book 3 Curacao Civil Code (‘CCC’), a connection should be sought with the law of Curacao (and elsewhere in the Kingdom) and not with foreign legal systems.
The fact that the Trustee has a position of trust, as laid down by law, does not, according …
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