This country-specific Q&A provides an overview of Litigation that may occur in Dominican Republic.
This Q&A is part of the global guide to Litigation. For a full list of jurisdictional Q&As visit http://www.inhouselawyer.co.uk/practice-areas/litigation-second-edition/
Published June 2019
What are the main methods of resolving commercial disputes in your jurisdiction?
The main method to resolve commercial disputes is traditional litigation before ordinary courts. However, direct negotiation among interested parties is always present as litigation tends to become a mere means to persuade amicable settlements. Arbitration before a chamber of commerce, especially the ones located in Santo Domingo and Santiago (the two main cities), continue to evolve and mature, to the point where it is not atypical to find arbitration clauses in low to medium-stakes matters. Mediation is not quite as common in ordinary disputes and is more likely to take place when the dispute involves parties with similar backgrounds, especially if high-profile.
What are the main procedural rules governing commercial litigation?
The Commercial Code barely regulates commercial disputes, as only a few articles refer to the jurisdiction and standard of evidence in these matters. The main procedural rule, thus, is the Code of Civil Procedure, which basically consists of the 1806 French Code. The most relevant modification of the Code of Civil Procedure took place in 1978 with the enactment of Law 834, which, in turn, acknowledged the chief amendments made in France in 1972. Law 834 deeply simplified civil procedure (that essentially governs commercial litigation), particularly the discovery stage and the means to exchange evidence, but a new reform is highly needed to accelerate matters. Several bills have been considered since 1997, but none have been approved.
Three other legislations have modernized civil and commercial procedure since 1978: Law 50-00 (enacted on 2000), Law 491-08 (enacted on 2008), and Law 544-14 (enacted on 2014, which regulates international affairs amongst individuals). Law 50-00 reorganized the structure of the Courts of First Instance; on the other hand, Law 491-08 tried to limit the appeals (a sort of certiorari review remedy) before the Supreme Court; while Law 544-14 ruled issues concerning, among other topics, conflicts of law and jurisdictions in international disputes.
Finally, Law 479-08, on legal entities, provide important rules for commercial litigation, essentially allowing further interim remedies and criminalizing commercial breaches, which tends to estimate litigation between stake-holders.
What is the structure and organisation of local courts dealing with commercial claims? What is the final court of appeal?
There are no special courts to try commercial disputes. Even though the judicial system is based on French law, where specialized commercial courts do exist, in the Dominican Republic commercial disputes are heard in ordinary civil courts, henceforth there are civil and commercial chambers instead of individualized civil or commercial courts. Conversely, there are ongoing efforts to evolve from this system; for example, at the end of 2018 the Judicial Branch added two new courtrooms in the civil and commercial chambers of Santo Domingo (the country’s capital) that only try commercial matters, not sharing the civil part. It is still too early to gauge its impact, but it could definitively become the commencement of a new era in commercial disputes.
There are basically four hierarchies of courts within the Judicial Branch: the Justices of Peace (for complaints involving small amounts, composed by a single judge), the Courts of First Instance (that hear the majority of cases, as all complaints that are not explicitly deferred to another court must be heard by these courts, which are composed by a single judge as well), the Courts of Appeals (that hear the appeals of the decisions rendered by the Courts of First Instance on a trial de novo basis and are composed by panels of three to five judges), and the Supreme Court (which simply examines the legality of the decisions, mainly from the Courts of Appeals). There’s a fifth type of court, the Constitutional Court (13 judges), but it is not part of the Judicial Branch, and it may overturn decisions from the Supreme Court whenever the Constitution is infringed, although this is uncommon.
How long does it typically take from commencing proceedings to get to trial?
There is no pre-trial phase to filter cases. All cases involving litigation, except criminal matters, go directly to trial without a pre-trial stage even though it may lack any merit.
Are hearings held in public and are documents filed at court available to the public? Are there any exceptions?
Under the Constitution and the law on judicial organization, all hearings and court dockets are public and open to the public, respectively. There are exceptions, such as family matters and litigation concerning underaged. In all other cases parties can freely ask the court to limit the exposure, although this is uncommon, as publicity is ultimately the rule.
What, if any, are the relevant limitation periods in your jurisdiction?
The general statute of limitations is 20 years, therefore if no specific period is set for a particular matter this is the statute of limitations that applies. However, there are specific statutes of limitations for certain matters, such as, six months (for claims similar to tort claims in which the plaintiff seeks compensatory damages because of involuntary acts), one year (for complaints seeking compensatory damages for voluntary acts), two years (for purely contractual liability), three years (for collection claims based on credits that are payable within regular timeframes, such as leases), and five years (to pursue the annulment of purchase agreements).
What, if any, are the pre-action conduct requirements in your jurisdiction and what, if any, are the consequences of non-compliance?
Generally, no prior requirements are needed to file a complaint. Certain laws, however, demand preliminary actions before conducting formal litigation, such as when an insured party intends to sue its insurance company, as the law provides that plaintiffs need to conduct an imperative mediation before the National Superintendence of Insurance, otherwise all complains would be inadmissible. Another example is the law that governs grantor-agent commercial relationships, which sets forth that a mediation is mandated before the competent chamber of commerce and its omission allows the court to annul the complaint. Nonetheless, there is a strong tendency to limit pre-action requirements based on the constitutional due process clause. Under the Constitution, parties are free to go to court, which leads to courts to omit pre-requirements while applying this constitutional right.
How are commercial proceedings commenced? Is service necessary and, if so, is this done by the court (or its agent) or by the parties?
Commercial proceedings commence with the filing of a complaint. The complaint is filed by means of a bailiff notice drafted by the plaintiff’s attorney and personally served in the defendant’s domicile through a certified court bailiff, who serves as a judicial courier whose affirmations are presumed to be truthful as they enjoy public faith in their official capacity. Basically the complaint must identify the parties, the empowered court, the cause and purpose of the litigation, existing a mandatory obligation for the document to be written in Spanish, the official language of the country.
How does the court determine whether it has jurisdiction over a claim?
The law provides that the defendant who challenges jurisdiction must present its motion orally on a preliminary basis, so that technically the court rules on its jurisdiction with priority. Yet, courts usually defer to rule on motions based on lack of jurisdiction jointly with the merits, so judges hear the merits of complaints and afterwards decide whether they have jurisdiction on the matter. This can be positive, particularly for plaintiffs when defending from a baseless motion for lack of jurisdiction, but it can definitively harm a defendant that presents a suitable motion and has the right to hear its case before a competent court, as it may force the defendant to hear the merits of the complaint notwithstanding the court lacking jurisdiction and ultimately the court deciding in that sense after hearing the merits of the case on a lengthy litigation.
How does the court determine what law will apply to the claims?
Based on the generally accepted iura novit curia principle, judges are allowed to choose local applicable legislation. This means that judges have a proactive power to decide cases based upon the specific part of the law that they deem more accurate. Moreover, the law for private international matters (Law 544-14) allows judges to apply international legislation, when applicable, ex officio, although this is not customary.
In what circumstances, if any, can claims be disposed of without a full trial?
If the complaint is affected by an evident fault (i.e., time-barred), the defendant submits the motion on time and the court chooses not to defer discussing the demurrer jointly with the merits, then the matter can be rejected without a full trial. To the contrary, if the plaintiff has a solid case, it is inevitable to conduct a full trial for that there is no reduced trial.
What, if any, are the main types of interim remedies available in your jurisdiction?
The most prevalent (and successful) interim remedy is the brief-term action called “referimiento”, which is a special complaint, similar to an injunction, that allows the plaintiff to obtain a quick, interim decision provided that it shows that the proposed measure is urgent, and that the plaintiff’s motion is well-grounded. This type of complaint is a popular remedy originated in France and adopted in the Dominican Republic when adopting the French Code of Civil Procedure enacted in 1806. Additionally, a non-secured creditor may obtain an ex parte order to temporally seize the debtor’s assets through a quick, simple procedure, which in turn (when accepted) can be challenged by the debtor by means of the aforementioned “referimiento” complaint.
After a claim has been commenced, what written documents must (or can) the parties submit and what is the usual timetable?
The defendant does not need to submit a defense brief after receiving the complaint. Defendants respond commercial complaints by simply attending the hearings through their attorneys, and after final conclusions of law are submitted the judge authorizes the filing of briefs summarizing each parties’ positions. In principle, the plaintiff shall attach its evidence jointly with the complaint. However, the law does not sanction failure to comply with this obligation, and therefore parties are free to submit the evidence they choose during the course of proceedings with the sole condition that the other party is previously advised within a reasonable timeframe of the filing of such evidence, to ensure that due process is preserved. This means that there is no regulation that governs the moment when the evidence must be exchanged, so it depends on subjective, unpredictable methods such as the patience and criteria of the judge in charge.
What, if any, are the rules for disclosure of documents? Are there any exceptions (e.g. on grounds of privilege, confidentiality or public interest)?
There is no discovery phase per se. Rather, parties are entitled to submit evidence after the filing of the complaint. Usually the defendant waits for the plaintiff to submit its evidence before submitting evidence of its own, based on its strategic defense plan and under the premise of what documents were filed by the plaintiff, which is the party with the burden to prove its case. Parties are free to submit the evidence they choose and if a party needs a specific document from the counterpart or a third party, it may ask for the judge’s cooperation. All of this is conducted during trial, as there not a pre-trial stage in commercial matters.
How is witness evidence dealt with in commercial litigation in your jurisdiction (and in particular, do witnesses give oral and/or written evidence and what, if any, are the rules on cross-examination)? Are depositions permitted?
Parties’ and/or witnesses’ depositions are permitted provided that they are authorized by the court, so that parties must convince the judge of its feasibility and relevance when asking for permission. Affidavits are not regulated and thus are not quite common, as parties tend to question due process on the basis that it does not allow for cross-examination. Furthermore, cross-examination is usually ruled based on the judge’s own criteria, but definitively permitted.
Is expert evidence permitted and how is it dealt with? Is the expert appointed by the court or the parties and what duties do they owe?
Expert evidence is permitted. The expert must be appointed by the court, but the parties are allowed to provide suggestions. Expert evidence can manage to slow proceedings given its formality, as
- experts can be recused by the parties,
- courts must sworn them in, and
- experts are free to negotiate their professional fees, so if the expert recuses himself or the interested party can’t agree with a reasonable fee, the court then shall appoint another expert, which leads to prolong cases over time.
In sum, expert evidence can be vulnerable and must be used when strictly needed.
Can final and interim decisions be appealed? If so, to which court(s) and within what timescale?
Both final and interim decisions may be appealed. The rule is that all court decisions, unless explicitly prohibited, can be challenged. Decisions from the Justices of Peace and all claims brought as a “referimiento” complaint may be appealed within 15 days after notification of the decision through bailiff notice. On another hand, decisions from ordinary Courts of First Instance can be appealed in a month’s deadline.
What are the rules governing enforcement of foreign judgments in your jurisdiction?
The law concerning private international matters (Law 544-14) provides a simple, ex parte proceeding for recognition and enforcement of foreign judgments, similar to the provisions set forth by the Law on commercial arbitration for foreign arbitration awards, which, in turn, is based on the 1985 UNCITRAL Model Law on Commercial Arbitration. The competent jurisdiction is the Civil and Commercial Chamber of the Court of First Instance of the National District (the parties’ domiciles are not relevant for purposes of determining jurisdiction) and the applicant shall attach an authenticated version of the foreign judgment jointly with a legal translation into Spanish, if it is indeed drafted in a foreign language. The court will not examine the merits and shall only review that due process was respected and that the foreign decision is duly enforceable based on external premises, such as
- the fact that it was not further reversed in the original jurisdiction, and
- that its recognition will not contravene national nor international public policy limitations.
Can the costs of litigation (e.g. court costs, as well as the parties’ costs of instructing lawyers, experts and other professionals) be recovered from the other side?
The costs of litigation can be partially recovered but not in full as the law provides caps that do not meet real market values.
What, if any, are the collective redress (e.g. class action) mechanisms in your jurisdiction?
Dominican law does not provide for collective actions, at least not in the commercial arena (class actions are only permitted in constitutional complains to protect, for example, civil rights, as well as in environmental rights and customer protection litigation). In ordinary matters each individual party must prove the capacity and direct interest (i.e., only a contracting party can challenge a contract) in the matter; otherwise the complaint would be inadmissible.
What, if any, are the mechanism for joining third parties to ongoing proceedings and/or consolidating two sets of proceedings in your jurisdiction?
The law provides for voluntary and compulsory intervention of third parties. Hence, whenever a third party does not originally appear as a party of the process, it can perfectly become a party in the proceedings through any of the two mechanisms mentioned above. Moreover, courts may consolidate matters that were originally brought as independent cases provided that their connection is well-evidenced.
Are third parties allowed to fund litigation? If so, are there any restrictions on this and can third party funders be made liable for the costs incurred by the other side?
Third party funding is not regulated nor common. What is indeed customary (and not necessarily completely ethical) is that in tort claims (such as the ones concerning car accidents) lawyers usually disinterest their clients for the purposes of the claim and continue with litigation on their own so that they receive all proceeds.
What is the main advantage and the main disadvantage of litigating international commercial disputes in your jurisdiction?
The main advantages of litigating international commercial disputes can be summarized into two groups: (i) the legal system is generally open to international affairs, as it is explicitly provided both in the Constitution and in the law concerning private international matters (Law 544-14), therefore legislation largely prohibits discriminatory practices such as solve et repete and the controversial judicatum solvi bond, and thus foreign individuals may act as plaintiffs or defendants within the same boundaries of national citizens, and (ii) the law acknowledges internationally-recognized remedies such as forum non conveniens and has adopted a globally-harmonized arbitration technique, particularly because of the ratification of the New York Convention in 2002 and the influence of the 1985 UNCITRAL Model Law on Commercial Arbitration.
The main disadvantages are, fundamentally,
- that there are no genuine differences between civil and commercial procedures (besides the fact that the standard of evidence and the appointment of geographical jurisdiction are more flexible in commercial matters), which leads to an old-fashioned judicial interpretation of the law without a deep understanding of commercial practices and philosophies, and
- that historically there has been a worrying backlog in commercial matters given the excessive culture of litigation as the basic method of resolving disputes.
What is the most likely growth area for disputes in your jurisdiction for the next 5 years?
Bankruptcy. A new legislation passed recently, and it is the first regulation concerning this sensitive topic that has passed in the country. Creditors, especially unsecured ones, have a new alternative when setting up their strategy to conduct collection claims. Also, consumer-protection law is a hot topic that will certainly increase its exposure in the upcoming years.
Will be the impact of technology on commercial litigation in your jurisdiction in the next 5 years?
There are many positive expectations going on in the field of technology and its connection with the law. A new Chief Justice of the Supreme Court was recently sworn in who is well known for his past efforts with technology, so there’s expectation that the Judicial Branch will become more digitally-oriented. In the last two years the Judicial Branch has addressed the need of reducing the use of paper while increasing digital filing, which is not officially regulated but nonetheless can be implemented through practice.