Legal Blog

Thursday, May 09, 2013

Litigation is a skilled profession (part 6)

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 of a case from the one court to the other.

In this connection the doctrine of abuse of procedural law must also be mentioned (misbruik van procesrecht). The arrangement with regard to abuse of power (Section 3:13 Civil Code) is applicable outside proprietary law insofar as this is not detrimental to the nature of the legal relationship (Section 3:15 Civil Code). This doctrine can also play a role in the law of procedure: this is then called abuse of procedural law. Such abuse can for instance be the case when a creditor petitions wrongfully for someone's bankruptcy but also when there is a petition for someone's own bankruptcy (for instance only as a means of being able to make the employees redundant).

If you have a claim on a party it might be sensible to seize assets before or during the legal proceedings (beslag leggen). There are also all kinds of rules for seizures. For instance it makes a difference whether you seize assets under the debtor himself or under a third party, and whether you seize a receivable, trade stock or office premises. In Curacao it is possible to seize goods situated in Curacao while the principal action (hoofdzaak) is carried on in another country. (To be continued)

Filed under: Dispute Resolution by Karel Frielink.



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