Precautionary Measures For The Protection Of Credit Originated In A Foreign Judgment

Author:Mr Rodolfo Mesa Chaavez
Profession:Mesa & Mesa Abogados
 
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The legal system of the Dominican Republic allows the creditor with a credit based on a decision of a foreign court to protect their credit by interposing on a conservatory or preliminary lien on the assets of their debtor located in the Dominican Republic.

One of the most effective conservatory measures that can be taken by the creditor is the provisional judicial mortgage.

The first aspect is to analyze the regulatory framework that allows for prosecution of legal actions on the basis of a ruling or decision emanating from a foreign court, namely:

  1. Article 26, item 1 of the Constitution establishes that the Dominican Republic: "Recognizes and applies the norms of general and American International Law to the extent that their public powers have adopted them (...);

b) Article 122 of Law No. 834 of July 15, 1978: "Rulings rendered by foreign courts and acts received by foreign officials are enforceable in the territory of the Republic in the manner and in the cases as provided for by the law".

c) Art. 89 of law No. 544-14: "Recognition of foreign judicial decisions in contentious matters. Foreign judicial decisions in contentious matters will be recognized in the Dominican Republic. "

The most appropriate legal scenario is presented by the Civil Procedure Code, which establishes the right of creditors to request a competent judge to authorize the registration of a temporary judicial mortgage against the real estate of the debtor(s). In this sense Articles 54 and 55 of the Code of Civil Procedure express verbatim the following:

Art.-54: "The judge of the First Degree may also, in the same manner and under the conditions established in article 48, authorize the creditor to take a registration of a temporary judicial mortgage on some or all of the properties of his debtor. This provisional registration will only produce effects for three years; but may be renewed for equal time indefinitely, by submitting the order that authorized the first registration. The creditor must sue over the fund within the term indicated in the order authorizing the mortgage registration, under penalty of invalidity of the registration. Within a period of two months from the date on which the judgment on the merits has acquired res judicata, the creditor must convert the provisional registration into final registration, which shall take effect retroactively from the date of the first registration and will be done without cost. The creditor will pay the rights and expenses only...

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