By: Georges Santoni Recio
The Dominican Republic is a civil law jurisdiction and its litigation system is roughly similar to those of other Spanish-speaking Latin American countries, with the salient exception that most of its substantive and procedural law is French-based as opposed to Spanish-based, on account of its history and geography.
In fact, the four major codes of the Dominican Republic, the Civil Code, the Civil Procedure Code, the Commercial Code and the Criminal Code, started off as direct translations of their French counterparts. While over time they have evolved with some differences, the essential legal concepts remain the same. French case law is routinely argued in Dominican courts when there are no on-point references in Dominican case law.
Litigation tends to be quite formalistic, where the letter of the law and what is written in contracts are given much weight, with little flexibility in trying to reach an ideal of justice or an equitable solution. The system also tends to be proceduralistic, and trial attorneys that specialize in the intricacies of civil and criminal procedure tend to have the upper hand in litigation. Judges frequently pay more attention to the actual procedure that was followed than the merits of a given case, although the situation is improving to some degree, as rules have been adopted to expedite proceedings.
In civil cases, evidence is mostly written. Oral testimony can be used, but generally in a supplemental fashion. Although penalties for perjury are on the books, they are rarely enforced, and for that reason judges sometimes give less weight to oral testimony.
There is no “discovery” in Dominican civil and commercial procedure, as there are in common law jurisdictions. Although theoretically a court can compel a party to produce evidence, such decisions are rarely issued and even less frequently enforced.
Indeed, the enforcement of judgments is often a challenge. It is generally up to the winning party to arrange for enforcement, having to engage bailiffs to practice embargoes or seizures, and obtain the authorization of “public force” with the district attorney’s office and the police. In each of those stages the winning party has to convince the appropriate government official to act, resulting in delays and additional costs.
Enforcing a foreign judgment requires the validation by a local trial court under the “exequatur” proceeding. The problem is that there is little reference in the law as to what exactly constitutes an exequatur proceeding, and as a result, the criteria used by judges vary. Some courts validate a judgment solely upon review to confirm that the parties presented a defense, while others examine certain aspects of the merits, and some even attempt to retry the case to some degree.
A civil process generally starts with notice of the complaint via bailiff’s act. The defendant normally has eight “frank days” (ten calendar days) to respond, also via bailiff act. After this exchange of bailiff acts, the plaintiff must obtain a hearing date with the court clerk. That will start a series of hearings where the parties will present their procedural motions as well as, at the last hearing, their arguments on the merits. There can be an undetermined number of hearings, from as little as three to eight or more, until the parties conclude on the merits and the court takes the matter under advisement. The time difference between hearings varies, depending on the subject matter and the workload of the courts. In labor matters it can be as little as one day, while in civil cases it can be two or three months. After the debates are closed, the parties are granted time to file legal memoranda.
Injunctive relief exists in the Dominican Republic, under the procedure known as “referimiento”, but it still requires for a trial to be held, albeit under an expedited procedure. There is also the possibility of pre-lawsuit attachments, when there is a serious threat that assets can be disposed of. The attachment authorizations may be obtained ex-parte with the court, so long as there is a subsequent validation procedure with the presence of the attached party.
The courts are organized under the “principle of dual degree of jurisdiction”, where litigants are entitled to have a case tried before a first level court and appealed to a higher court. Civil cases generally start at the Court of First Instance, a trial court, and those decisions are subject to appeal before the Court of Appeals of the corresponding geographical jurisdiction.
Appeals are “de novo” where new evidence or new arguments can be introduced. Decisions by the court of appeals can only be taken to the Supreme Court when there is debate over an issue of law, not facts. If the Supreme Court refuses to hear a case, the decision of the Court of Appeals becomes final. If the Supreme Court, on the other hand, issues a writ of cassation against the judgment, the matter will be remanded to the Court of Appeals of a different geographical jurisdiction to be argued anew.
Constitutional matters are decided by the recently created Constitutional Court. Previously, the Supreme Court had jurisdiction over constitutional issues. There are specialized courts for tax and administrative matters. There is a separate court system for land property issues, as the Dominican Republic has the Torrens system of land registration. There are also specialized labor courts, both at the trial and appellate levels.
For the most part, foreign litigants are treated fairly. Under the Foreign Investment Law of 1995 and other laws, foreign litigants are treated the same as Dominican litigants. One exception is that in certain circumstances, non-resident foreign plaintiffs have to post a special bond (‘judicatum solvi bond’) before they can file a lawsuit against a Dominican national.
Another exception is in agency and distributorship disputes, where as a result of a highly protective distributor law (Law No. 173 of April 6, 1966, as amended), some courts see their role as protecting local distributors against powerful foreign multinationals. That law imposes substantial penalties on foreign manufacturers that terminate local distributors without “just cause”.
In the labor courts, there is not so much an anti-foreigner bias as an anti-employer bias, where courts frequently bend over backwards to rule in favor of employees. There is a “principle” in the Labor Code under which whenever there is doubt or ambiguity in the interpretation of a law, the court should rule in favor of the employee.
Another possible example of bias is when the government is a party to litigation. Courts generally tend to defer to the government’s position and are reluctant to rule against it. And enforcement can be particularly difficult when it is against the government or any of its agencies, as by law the State cannot be embargoed.
Corruption exists in the Dominican courts, but the situation improved markedly when the system of career judges was implemented. It is still far from ideal though.
In general, the size of the awards tends to be relatively small, especially in personal injury cases when compared to awards handed down in other jurisdictions.
There is no jury trial in the Dominican Republic. All cases are bench trials, presided over by professional judges. Choice of law and choice of forum provisions are generally respected, except in specific instances when matters of Dominican public policy are involved, such as land issues, which must be heard in country, and disputes between foreign manufacturers and local distributors, where Law No. 173, considered a “public order” statute, is of mandatory application notwithstanding what the parties may have agreed to in their distribution agreements.
Criminal litigation was substantially modified some years ago. The old French-based Criminal Procedure Code was eliminated and a new one adopted with rules more akin to those of common law jurisdiction, where the state has the burden of proving a case against the defendant, as opposed to the old French style system of “juge d’instruction”.
Arbitration is available in the Dominican Republic and is growing. The Dominican Republic is a party to the New York Convention on the Enforceability of Foreign Arbitral Awards. But arbitration is not a cure-all, and in some instances it may be preferable not to select an arbitration system for dispute resolution. For starters, arbitration can be quite expensive, and when the defendant refuses to post the necessary funds to initiate the arbitration, the claimant generally has no option but to post the money itself, thus effectively duplicating the cost.
In conclusion, because of its drawbacks, litigation in the Dominican Republic should be considered a last resort and parties should take extra care in crafting their agreements to minimize the possibilities of litigation.
For more information you may contact Mr. Georges Santoni Recio at 809-535-9511 ext. 272 or gsantoni@rvhb.com
