International Law

PRE-TRIAL MOTIONS IN THE DUTCH CARIBBEAN

By Karel.Frielink

Differences with the United States

Netherlands Antilles civil proceedings differ substantially from those in the United States. In the Dutch Caribbean there are, for instance, no juries. In principle, legal proceedings are basically conducted in writing. Oral pleadings are customary in preliminary relief proceedings, but optional in proceedings on the merits. Discovery proceedings like those in the United States do not exist. Pre-trial motions similar to those in the United States do not exist in the Netherlands Antilles either. There are, however, so-called incidents or ancillary proceedings in the Dutch Caribbean.

An ancillary proceeding may be a separate procedural step or an ancillary step within the framework of the main proceedings. Ancillary proceedings may involve an ancillary procedure, an incidental defense, or a court-ordered ancillary proceeding. Examples of an ancillary procedure include a procedure for joining parties, a procedure for joining claims, and a procedure for obtaining security for costs.

If proceedings on the merits are initiated by a non-resident plaintiff, the defendant may ask the court to order the plaintiff to provide security for damages, costs and interest which it might have to pay as a result of the judgment in those proceedings. This “cautio judicatum solvi” does not have to be provided if a Treaty on legal proceedings exists between the Netherlands Antilles and the country of residence or establishment of the plaintiff.

There is no possbility for a (pre-trial) motion to dismiss the case, based, for instance, on the fact that there already is a settlement agreement in place. The most important incidental defense is the defense that the court is not competent to hear the case, for instance, because the parties have agreed to submit the dispute to an arbitral tribunal.

Karel Frielink
Attorney (Lawyer) / Partner

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Full post as published by Karel's Legal Blog on January 09, 2009 (boomark / email).