International Law

LITIGATION AND SEIZURE

By Karel.Frielink

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. As a result of such attachment, the debtor cannot alienate or dispose of the assets for the duration of the legal proceedings about the validity of the creditor?s claim. The creditor must then assert that he has a legitimate claim and, in some cases, fears embezzlement of the debtor?s assets. If the court, after a brief investigation, accepts the merits of the creditors claim, it will grant the attachment.

There is a difference between the Dutch and the Dutch Antillean law with respect to the attachment and hearing the debtor. The Dutch court will grant a seizure if convinced that the debt-claim is prima facie legitimate. Judges-practice used to allow a debtor or his attorney, who suspected possible seizure of his valuable assets, to delay the attachment until having been heard in advance (?zwart maken beslag?). Most courts in the Netherlands have however abolished this practice. The Dutch ?attachment procedure? prescribes that the court may determine if this practice is to be implemented or not. If it is not, the (unpleasant) result is that the attachment can only be lifted by means of a summary or interlocutory procedure. The attachment will then only be lifted if the prejudgment attachment is made without taking the formal requirements into account or if the creditor?s claim is prima facie without merit.

As for the Netherlands Antilles, the possibility of being heard by the Court is regulated. According to the Court of Justice?s new protocol, which was drafted on 26 February 2010, the debtor?s lawyer will be heard (in absence of his client) before a seizure is effectuated. The lawyer may not inform his client  regarding the attachment order served on his client.

Generally and unless a request to be heard is assigned, the debtor will not be heard before the actual attachment is a fact. Nonetheless, under certain circumstances the debtor may be heard prior to attachment being instituted. Here Dutch and the Dutch Antilles Civil procedures diverge again to some extent. This is the case with respect to prejudgment attachments on periodical payments such as salary, income support, unemployment benefits or pension. According to the Dutch legislator, a prejudgment attachment on such periodical payments, is a very extreme measure with such major impact on the debtor?s life that the debtor should be heard in advance. In addition, such attachment may only be instituted if the debtor?s income exceeds a certain limit, laid down by law. Furthermore, the court should take the ?attachment free rate? into account, a limit which depends on the debtor?s personal circumstances (married, single parent, etc.).

Dutch Antillean law regulates such attachment differently. Attachments effectuated by an employer may not exceed a third of the employee?s monetary benefits, however, it is not regulated that the debtor will be heard before the court grants the attachment order.    

Martine Hofhuis
Lawyer – Spigthoff Curacao

(13 July 2010)

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Full post as published by Karel's Legal Blog on July 13, 2010 (boomark / email).