OBITER DICTUM OR NOT?
Litigating twice on the same matter is not allowed
The Netherlands Antilles Code of Civil Procedure prevents parties from litigating twice on the same legal issue. The principle that a final judgment of a competent court is conclusive upon the parties in any subsequent litigation involving the same cause of action is known as ‘res judicata’. A Dutch court case is described below illustrating this principle: Utrecht District Court of 19 March 2009 (NJF 2009/291).
In initial litigation, the claimant had sought payment of certain contractual penalties. The Court of Appeals rejected the claim on two separate grounds, the first …
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DUTCH CARIBBEAN LITIGATION AND THE ESTABLISHMENT OF FACTS
Failing to contest may make a fact true
Facts play an important role in civil litigation. Facts are established by the Court in First Instance of the Netherlands Antilles or Aruba and by the Joint Court of Appeal of the Netherlands Antilles and Aruba, not by the Supreme Court. A review by the Supreme Court is not a full review, but is limited to verifying that the Court whose judgment is under review has not breached Netherlands Antilles laws (or Aruban laws as the case may be) and that there have been no defects in the proceedings resulting in the …
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CHAMBERS GLOBAL 2010 LAUNCHED
All-new law firm rankings
The Chambers Global 2010 was launched at the end of February 2010. You will find the all-new rankings and editorial on their website – www.chambersandpartners.com. The Chambers Global focuses on firms and lawyers who have truly international practices. This is what Chambers and Partners has to say about Spigthoff Attorneys & Tax Advisers Curacao:
This group has offices on Curaçao and in Amsterdam, which allows it to attract a great deal of work deriving from the Netherlands itself. With a focus on international financial deals and corporate work, the …
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ORDINARY VERSUS SUMMARY PROCEEDINGS IN ARUBA
Interlocutory or summary proceedings provide for immediate relief
Article 110 of the Netherlands Antilles and Aruba Code of Civil Procedure (‘the Code’) provides that all adversarial proceedings shall be initiated by means of a petition to the court of first instance. Proceedings so initiated are ordinary proceedings a.k.a. proceedings on the merits.
A petitioner may opt for preliminary relief proceedings (a.k.a. interlocutory proceedings; ‘kort geding’). Article 226 of the Code provides that in urgent cases which require an immediate decision, the plaintiff may request a provisionally enforceable judgment (‘beslissing bij voorraad’).
Article 229 of the Code provides that a provisional …
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THREE QUESTIONS ON ARUBAN BANKRUPTCY LAWS
FAQ
Question 1
In which cases and by whom may bankruptcy proceedings be initiated in accordance with Aruban bankruptcy law?
Filing for bankruptcy may be done either by the debtor itself or by one or more of its creditors. If the debtor is a company, generally speaking the managing directors do not have the authority to petition for bankruptcy of the company without authorization thereto from the general meeting.
The pre-requisites for making a bankruptcy order on application, regardless of whether the application is made by the debtor or by any of the other above mentioned persons, is, that the …
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PLC CROSS BORDER LAW FIRM RECOMMENDATIONS 2010
Netherlands Antilles
According to PLC Cross Border (Which lawyer?), Spigthoff Attorneys & Tax Advisers is one of two firms dominating the Netherlands Antilles market for international work, both on- and offshore.
Spigthoff ranks high in corporate / M&A and dispute resolution.
Martijn Welten, who specializes in corporate law, mergers & acquisitions and corporate litigation, is (highly) recommended in the areas of dispute resolution and corporate/M&A.
Karel Frielink is considered a leading professional in the area of high net-worth private clients. Karel is highly recommended in the areas of corporate and M&A, …
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FOREIGN CLAIMS SECURED BY ARUBAN SECURITY RIGHTS
The foreign law governed claim must be sufficiently identifiable
Many financing arrangements are of a cross-border nature. For instance, a loan agreement governed by English law with the loan secured by a right of pledge governed by the laws of Aruba. This raises all kinds of questions.
Any foreign right, for instance a claim, in which an Aruban pledge is created, must be sufficiently identifiable (‘met voldoende bepaaldheid omschreven’) within in the meaning of section 3:84(2) of the Civil Code of Aruba.
Also, if one wishes to create a right of pledge in a foreign right, such a right must …
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NETHERLANDS CARIBBEAN BANKS AND REGULATORY ISSUES
A bank has less freedom than an ordinary legal entity
What would be the requirements, from a regulatory point of view, if a Netherlands Antilles bank wished to sell its entire business or a substantial part thereof? Would it require approval from the Netherlands Antilles Central Bank (de ‘Bank van de Nederlandse Antillen’)?
Generally, if the activity at a bank is characterized as some form of financial reorganization, for example, the prior approval of the Central Bank is required. The bank is also obliged to immediately inform the Central Bank in writing of any resolution for complete or partial liquidation or …
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THE DUTCH CARIBBEAN AND ITS CIVIL LAW SYSTEM
Abstract rules are the starting point
The Netherlands Antilles are an autonomous part of the Kingdom of the Netherlands. The Kingdom of the Netherlands is composed of three parts: the Kingdom in Europe (popularly known as Holland, north of Belgium and west of Germany), the Netherlands Antilles (in the Caribbean Sea, north of Venezuela), and Aruba (also in the Caribbean Sea, north of Venezuela). Within the Kingdom of the Netherlands, the Netherlands Antilles are autonomous except for matters of defense and foreign affairs. Curacao is the largest of five islands that form the Netherlands Antilles. The other islands are Saba, St …
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BREACH OF CONTRACT IN THE DUTCH ANTILLES (V)
Restrictions on termination
With regards to damages, the aim thereof is generally to restore the creditor to the position he would have been in had the contract been fulfilled. In case of breach of contract, the damages will usually be assessed by considering the situation the creditor would be in if restored to the position he would have been in had the contract been performed properly, by looking at costs incurred, wasted expenditure, any loss of profits etc.
The Netherlands Antilles Civil Code will generally allow an injured party to claim damages based on the expectations/positive interest, i.e. the position …
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BREACH OF CONTRACT IN THE DUTCH ANTILLES (IV)
Non-performance as a response to non-performance
Whenever a party to a contract is faced with non–performance by the other party, the party’s first reaction might well be to suspend its part of the contract. In the legal sense of the word, suspending or withholding performance may be described as both a defense and a self help remedy, which a party can use when the other party does not perform its obligations under the contract. By its very nature it is a temporary remedy. As long as one party is in breach and the other is withholding its performance, the contract …
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BREACH OF CONTRACT IN THE DUTCH ANTILLES (III)
Different cases of breach of contract
Any question of breach starts with an inquiry into the type of obligation at hand. It is necessary to know more about the type of obligation at hand in order to determine whether a party has failed to perform that obligation. When determining whether a party has failed to perform, it should be remembered that an obligation may carry with it a degree of ‘strictness’, ranging from a firm commitment, e.g. commitment to provide annual audited financial statements, to an obligation to use reasonable care and skill to achieve certain goals.
The Netherlands Antilles …
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