I. PURPOSE AND SCOPE
The purpose of Law No. 544-14 is the regulation of International Private Relationships, which are those related to a foreign legal system, either in view of their objective elements, or the personal elements that conform the legal relation in question. In this sense, this law is focused on delineating three (3) key points concerning conflict of laws: (i) the jurisdiction of local courts; (ii) the applicable law regarding an international legal situation; and (iii) the recognition and enforcement of foreign judgments in our country. Administrative, arbitration and bankruptcy procedures have been excluded from the scope of this law.
This law came into effect on December nineteenth (19th) two thousand fourteen (2014), and is applicable to all processes initiated after the date of its entry into force without prejudice to any previously acquired rights.
II. MAIN CONCEPTS
The main concept introduced by Law 544-14 is "International Private Relations", this concept being the basis of the field of application of this law. The law further defines the following concepts:
(I) International Dispute: Any dispute that has an element characteristic of an International Private Relation.
(II) Dominican public order: Includes all regulations of our internal law which cannot be repealed by the parties.
(III) International Public Order: Group of principles in which the dominican legal system is inspired and reflect the values of society at the moment of their appreciation.
(IV) Domicile: Refers to the place of habitual residence. In the case of a natural person the law does not admit more than one domicile.
(V) Habitual Residence: For a natural person, it's the de facto place of main establishment, taking into consideration the personal and professional circumstances that can provide an enduring bond with a specific place; and for a legal entity it's the place in which it has its headquarters, administration or main activity, for the purpose of its identification, as established in Law No. 479-08, General Law of Societies.
III. JURISDICTION OF LOCAL COURTS
The law establishes the general competence of dominican courts, which are competent for the knowledge of any disputes happening at the time in the country, except in cases where there is a previously agreed upon forum of choice, regardless of the nationality of the parties, who will have access to justice on equal terms. It was by means of this law that the legal provisions that established the foreigner or judicatum solvi bail, which was applicable to foreigners acting as plaintiffs, were formally and definitively repealed.
Notwithstanding the foregoing, within the specific powers granted under this law, we can list the following:
1) Exclusive Forums: Refers to matters that can only be known by local dominican courts; namely:
a) Those related to property rights and leases on property in dominican territory;
b) Constitution, validity, nullity, or dissolution of commercial companies domiciled in dominican territory; also regarding agreements and decisions of their organs, when the aforementioned action affect their existence and operating norms;
c) Validity or nullity of registrations made in a dominican registry;
d) Registration or validity of a patent and other rights submitted for deposit or registration when they have been requested in the Dominican Republic;
e) Recognition and enforcement of judicial and arbitration decisions in dominican territory;
f) Conservatory measures enforceable in the Dominican Republic; and,
g) Determination of dominican nationality.
2. Concurrent Forums: Refers to matters that can be known by both foreign courts and local dominican courts in specific circumstances, as listed below:
a) Forums of Persons and Family Matters: Dominican courts are competent for the knowledge of the following actions (i) declaration of disappearance or death; (ii) incapacity and actions related to protection of the person or property of the disabled; (iii) related to personal and patrimonial relationships between spouses; (iv) issues relating to filiation; (v) for the constitution of adoption; (iv) alimony when one of the parties has residence in the Dominican Republic, as applicable in each case.
b) Forums of Property Rights: In this matter, the local courts will be competent for the knowledge of actions, related to: (i) contractual obligations and non-contractual obliga tions, when they should be executed in the Dominican Republic, or if the parties have residence in the Dominican Republic; (ii) exploitation of a branch office, agency or business establishment located in the country; (iii) consumer contracts, if the consumer lives in the Dominican Republic; (iv) insurance when the beneficiary is domiciled in the country, or the damage was produced in dominican territory; (v) moveable assets located in dominican territory, and (vi) when the causative of a succession has had his last domicile, or has movable assets in the Dominican Republic.
3. Forum Election Agreement: For any other matter not mentioned previously, local courts will be competent when: (i) the defendant is domiciled in dominican territory or is reputed to be; or, (ii) when the involved parties have selected these courts, tacitly or explicitly, without any formality other than it being in written form.
Forum election agreements for contracts celebrated by consumers, in matters of insurance and actions related to moveable property located in dominican territory, will only be valid if: (i) the election of forum is made after the dispute has initiated; (ii) the parties were domiciled in dominican territory when the relationship started; or (iii) the defendant is the consumer, employee, insured, policyholder, injured or insurance beneficiary.
Other limitations related to competence
- In case of multiple defendants, local courts are competent if at least one of the defendants are domiciled in the Dominican Republic;
- In case of multiple pending cases on the same subject, as long as the cases are not related to matters where local jurisdiction is the exclusive forum, local courts will suspend the process until foreign courts pronounce themselves about their competence. Once this has taken place, this exception will be admitted, therefore local courts will remit the case whenever a foreign court declares itself competent based on a forum of competence considered as reasonable;
- In case of incompetence, it can be declared by order of the courts when the defendant does not present himself to the court in the cases governed by the law in question; and,
- The procedural law applicable to each case must be the one currently in force when the action was introduced; it cannot be modified until the trial has concluded.
New Procedural Figures
(i) Forum Necessitatis: This figure allows dominican courts to know any case, in spite of not being competent for their knowledge, when elements of the case are associated to the Dominican Republic and if (a) no other foreign courts are competent to know the case; and/or, (b) the Dominican Republic denies execution of the foreign judgment of the pertaining case.
(ii) Non Convenient Competence Forum (Forum Non Coveniens): It allows local courts to remit a case they are competent to know if the need arose for the celebration of: (a) testimonial evidence from witnesses who reside abroad and their traveling to the country, or the celebration of this recollection of evidence in another country, would be very expensive for the parties; or (b) a judicial in spection abroad to improve the appreciation of the case.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.