AVIATION – OPEN SKIES AGREEMENT WITH BRAZIL
Brazilian airlines are looking to use Curaçao as a hub to the United States of America
According to various news publications Curaçao entered into a bilateral air services agreement, on an open skies basis, with Brazil. The bilateral air services agreement makes it possible for airlines of both countries to start air services between Curaçao and Brazil. The agreement applies both to carriage of passengers and carriage of cargo.
Two years ago a Memorandum of Understanding (MoU) was signed between Brazil and Curaçao to enter into a bilateral air services agreement. Pursuant to the MoU, Minister Earl Balborda signed the …
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THE COURT OF LAST RESORT
Curaçao court as court of last resort for civil matters
An attachment on assets located in Curaçao generally establishes jurisdiction over the cause of action for which the attachment is made, also if neither of the parties involved are domiciled in Curaçao.
According to Section 767 of the Curaçao Code of Civil Procedure, the Curaçao court is competent to hear a case on the merits (i.e. has (international) jurisdiction) if there are no other means of obtaining an enforceable order in Curaçao (first condition).
This condition will not be met if, for instance, in respect of a claim an arbitrator …
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150 JURIDISCHE PUBLICATIES
Een persoonlijke mijlpaal
Afgelopen donderdag was het dan zo ver: mijn 150e juridische publicatie zag het levenslicht. Het gaat om mijn bijdrage aan het Liber Amicorum ‘Christels Koers’ dat toen werd aangeboden aan prof.mr. drs. C.M. Grundmann-van de Krol: “Openbaarmaking door de financiële toezichthouders”. De volledige lijst met publicaties is hier te vinden.
Nummer 151 is overigens al geschreven en is in het komende nummer van het Caribisch Juristenblad te vinden. De meer dan 850 stukken die op deze weblog staan heb ik uiteraard niet meegeteld…
Karel Frielink Attorney (Lawyer) / Partner
(2 December 2013)
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CHALLENGING THE VALIDITY OF A CONTRACT
Based on error, fraud or undue influence
The validity of a contract can be challenged on various grounds, including error, fraud or undue influence. In the case to be discussed here a contract was entered into by an intermediary. Appellants in cassation (Van Eendenberg) were owners of the parcels on which a preferential right was established pursuant to the (Dutch) Municipalities (Preferential Rights) Act. In view of the sale of those parcels, in so far as municipalities should need them for house construction, they have entered into a brokerage agreement with Agromak BV.
Its director then acted as an intermediary …
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US LAW GOVERNED AGREEMENTS
Curaçao and St. Maarten Courts will accept the choice of laws
One of the questions frequently asked is whether the Courts in Curaçao or St. Maarten, if an action is brought before them, will pay deference to a “choice of governing law” and/or venue provision in an agreement, in particular when the parties have chosen US Law, and a US Court to resolve their disputes.
The choice of the laws of (a particular State of) the United States of America as the laws governing an agreement is valid and binding under the laws of Curaçao/St. Maarten, and will therefore be …
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SERVICE OF PROCESS
A bailiff must be engaged
What is the procedure for the service of foreign proceedings under the procedural laws of Aruba, Bonaire, Curaçao, St. Maarten, St. Eustatius and Saba for a company having its registered address in one of those territories, for instance Curaçao?
Under Curaçao procedural law, the service of proceedings on a Curaçao legal person will be done by means of a bailiff’s notification. This notification shall be served (i) on the person or residence of the president of the management board of the company or (ii) on the business and/or registered address of the company.
Curaçao procedural …
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THE COSTS OF LITIGATION
Parties have to bear their own attorney costs
Under the laws of Aruba, Bonaire, Curaçao, St. Maarten, St. Eustatius and Saba, generally speaking, each party has to bear its own attorney costs, except if there is an agreement in place between the parties providing for such compensation. Other costs related to proceedings are for instance bailiff costs and court fees.
The extent to which the aforementioned costs of litigation are to be borne by the party losing the case are determined by the court. The costs will in fact not compensate the actual costs and attorneys fees incurred. They are …
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SEIZING ASSETS IN THE DUTCH CARIBBEAN
Court approval required, but freezing assets is rather easy
Under the laws of Aruba, Bonaire, Curaçao, St. Maarten, St. Eustatius and Saba 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. Seizing assets of a another party may already be possible at a time when the claim (e.g. under an agreement or a guarantee) is not yet due, but where there is good reason to believe that, when it will become due, the other party will not honor …
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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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SEARCH ENGINE SERVICE PROVIDERS NOT RESPONSIBLE FOR DATA
Opinion Advocate General Jääskinen
Opinion in Case C-131/12, Google Spain SL, Google Inc. v Agencia Española de Protección de Datos, Mario Costeja González.
According to the Advocate General a national data protection authority cannot require an internet search engine service provider to withdraw information from its index except in cases where this service provider has not complied with the exclusion codes4 or where a request emanating from a website regarding an update of cache memory has not been complied with.
Also, the Directive does not establish a general ‘right to be forgotten’. Such a right cannot therefore be invoked against …
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LITIGATION IS A SKILLED PROFESSION (part 8)
New legislation
Finally, note that rather simple examples have been taken here. However, many suits are complicated with regard to their subject matter. In this connection disputes about complicated take-over issues, disputes between investors and an investment fund, disputes with a contractor or architect about a building or disputes about intellectual property come to mind. All these types of dispute require from advocates much more knowledge of and experience with litigation. It is not that each advocate must be an expert in all those areas but he should at least have experts in his team.
Only a few aspects of …
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LITIGATION IS A SKILLED PROFESSION (part 7)
Injunctive relief
Apart from seizures it is also possible to consider an application for interim injunctive relief (voorlopige voorziening). The Judge for Interim Relief can render so-called provisional relief, for instance order a building freeze or order the counterparty to pay an advance on the compensation. Such a provision is called provisional because it is a measure in the interests of maintaining order to which the court dealing with the principal case is not bound. So it may well be the case that the provisional judgment of the Judge for Interim Relief differs fundamentally from the judgment of the court …
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