Litigation 2019 Second Edition Comparisons

Last Updated December 05, 2019

Law and Practice

Authors



Medina Garrigó Abogados is a boutique law firm founded in the Dominican Republic by Fabiola Medina Garnes in 2004, under the name Medina Garnes Asociados. Since its inception, the firm has acquired extensive experience assisting clients in handling legal matters in the areas of telecommunications, administrative law, taxation, litigation and alternative forms of dispute resolution. Additionally, following a strategy of careful and steady growth in recent years, MGA has been able to expand its law practice to include new areas of the law, thus developing a broader and comprehensive practice, with emphasis in providing services with the highest standards of quality, cost-efficiency, and focused on client-based solutions.

The legal regime of the Dominican Republic is based on civil law. It is a jurisdiction belonging to the Roman-Germanic family and the system remains mainly formalistic.

For many years the criminal system was inquisitorial; however, after a substantial reform of the criminal procedure rules in 2007, the system has moved to an adversarial one.

All matters are conducted including both written submissions and oral arguments. Due to the nature and characteristics of certain subjects, the principle of orality has a more prominent presence in processes such as criminal ones. In civil procedures evidence is mostly written and, in certain cases, testimony is admitted.

The judicial system is divided into 11 judicial departments and 35 judicial districts. In each judicial district there is a court of first instance and each judicial district is headed by a Court of Appeal. Cases can later be submitted before the Supreme Court of Justice, to assure coherence in the application of the law. Courts of first instance and courts of appeal are commonly divided into chambers according to the nature of the case (ie, civil, commercial and criminal chambers). The Supreme Court of Justice is also divided into three chambers: (i) civil and commercial; (ii) criminal; and (iii) land, administrative, labour, tax and all other matters.

In addition there are special courts created for specific matters such as: the courts of peace, which are competent to hear certain specific matters (car accidents, municipality matters, leasing) or civil and commercial claims of a small quantity (approximately USD400); the Superior Administrative Court (competent to hear any claim that involves the Administration or public officers); and family courts (family claims and disputes involving minors). Most recently, the mercantile restructuration courts was created to deal with matters regarding bankruptcy and liquidation of companies.

All judicial proceedings are open to the public, and public hearings are held in the majority of civil proceedings pursuant to Article 87 of the Civil Procedure Code of the Dominican Republic. Exceptionally, confidentiality applies in certain matters such as cases involving minors, based on Article 231 of Law No 136-03, the Minor Code, which sets out the principle of confidentiality of minors. Also, divorce procedures per cause can be confidential. A judge can always, based on justified motivation, declare confidentiality in specific cases, due to special circumstances.

Lawyers must have an exequatur in order to appear in courts. Law No 91-83, which created the Bar Association of the Dominican Republic, defines a lawyer as any individual, national or foreign, who has obtained the title of lawyer in the Dominican Republic or revalidated one that has been issued abroad. In addition, lawyers need to obtain an exequatur to exercise the profession in the Dominican Republic.

Obtaining an exequatur is mainly an administrative approval process required for the execution of different professions in this jurisdiction pursuant to the provisions of Law No 111 of 1942. This authorisation is granted by a decree from the President authorising lawyers to practice in the country. To complete this process, lawyers must participate in an induction – and taking of sworn oath – ceremony held by the Supreme Court of Justice. It is also mandatory to be part of the Dominican Bar Association (Colegio Dominicano de Abogados).

It is important to point out that certain formalities apply to lawyers acting before the Dominican courts. In this regard and pursuant to the provisions of Law No 821-27 of Judicial Organisation, in order to litigate before the majority of the Dominican courts, all lawyers – male or female – must always wear a gown, special lawyer cap, white shirt and black tie.

Third-party funding is not expressly allowed in the Dominican Republic. The majority of authors, in a wide interpretation of the French legal principle Nul ne plaide par procureur, understand that third-party funding is not permitted. 

Third-party funding is not expressly allowed in the Dominican Republic.

Third-party funding is not expressly allowed in the Dominican Republic.

Third-party funding is not expressly allowed in the Dominican Republic.

Third-party funding is not expressly allowed in the Dominican Republic.

Contingency fee arrangements between lawyers and clients are permitted in the Dominican Republic. The Dominican Code of Ethics for Lawyers, Decree No 1290 of 1983 (Code of Ethics for Lawyers), indicates that the terms and conditions for lawyers’ fees, including payment conditions, should be agreed between clients and lawyers before the provision of the services, and it is recommended to agree these terms in writing. In addition, Law No 132 of 1964, which regulates lawyers’ fees, indicates that these contingency fees cannot be greater than 30% of the amount of the goods or rights covered in the judicial process (Article 3 of Law No 132 of 1964).

As indicated, third-party funding is not regulated in this jurisdiction.

The general rule is that claimants do not have to comply with pre-action procedures before commencing proceedings; however, there are some exemptions. It is worth noting that Article 1146 of the Civil Code of the Dominican Republic indicates that damages are due only where a debtor is given notice of default in contractual liability.

In certain cases and for specific matters provided expressly in the law, the fulfilment of a conciliation process is required to initiate certain claims before the ordinary courts. Such is the case of Law No 173-66 on the Protection of Importer Agents of Goods, which provides for a mandatory conciliation process before the Chamber of Commerce of the Dominican Republic.

The general statute of limitations for the majority of civil claims is 20 years according to Article 2262 of the Civil Code of the Dominican Republic. Other matters are subject to shorter periods as expressly stated in the law. Some of these matters include tort actions arising out of negligence actions (six months to one year) and liability claims when one party does not fulfil its contractual obligations (two years).

To be subject of a suit in the Dominican Republic the defendant must have legal capacity. Legal capacity in the country is acquired at the age of 18 (Article 488 of the Dominican Civil Code). Persons declared under interdiction for mental incompetence are considered as minors pursuant to the provisions of Article 509 of the Civil Code. 

In 1995 with the enactment of the Foreign Investment Law of the Dominican Republic, Law No 16-95, equal treatment for foreign investors was established. This right of equal treatment was also recognised in the Dominican Constitution of 2010. Accordingly, foreign defendants are treated the same as Dominican ones.

The majority of complaints are initiated by a bailiff act or petition in the terms described in 3.5 Rules of Service. This document limits the scope of the claim and, although the plaintiff is permitted to provide additional evidence and arguments to support the claim, it is not permitted to modify the scope of the claim as it is stated in this initial document.

In civil and commercial claims, it is not mandatory to supply the available evidence with the initial notification act since the plaintiff will have the opportunity to submit more evidence during the process. Other matters (such as administrative ones and appeals before the Supreme Court of Justice) require the depositing of evidence with the initial petition.

For initiating civil and commercial proceedings, the claim should be notified by means of a bailiff act pursuant to the provisions of Article 59 et seq of the Dominican Civil Procedure Code. In the majority of cases, this act needs to be performed at the domicile of the defendant and needs to comply with the following formalities or otherwise it will be declared invalid:

  • general information about the plaintiff, including domicile;
  • general information about the plaintiff’s lawyer;
  • general information about the bailiff;
  • the object of the claim; and
  • the court where the claim is going to be heard. 

Other matters such as ones conducted before the Superior Administrative Court (pursuant to Law No 13-07) and before the Supreme Court of Justice (Law No 3726 of 1953), criminal cases (Dominican Criminal Procedural Code) and land cases (Law No 108-05) are initiated by a petition before the corresponding court. This petition should be later notified by the plaintiff to the defendant by means of a bailiff act or by the secretary of the court. 

For defendants domiciled outside the Dominican Republic, a special process of notification applies pursuant to Article 69.8 of the Dominican Civil Procedure Code. In these cases, the notification is made through the Ministry of Foreign Affairs after the competent prosecutor seals the bailiff act. Depending on the jurisdiction of the defendant, this process could take several weeks. Defendants domiciled outside the Dominican Republic benefit from an increase in the time for responding to the claim based on their location (eg, for the USA and other countries of North America an increase of 15 days is applicable).

In civil and commercial matters, the defendant has a period (in the majority of cases ten calendar days) to respond to the claim by indicating the names and domiciles of its lawyers (Constitución de Abogados). If after this period there is no response from the defendant, the plaintiff is not required to notify the defendant of the date and place of the first hearing. During this first hearing, if the lawyers of the defendant do not attend the hearing on the scheduled date, the plaintiff is entitled to request the defendant's default of the case due to non-appearance (defecto por falta de comparecer).

If the defendant responds to the claim indicating the name of his lawyer, the plaintiff needs to notify this representative the date and place of the hearing. If the defendant’s lawyers do not attend the hearing the plaintiff is entitled to request the defendant's default of the case due to lack of conclusion (defecto por falta de concluir).

Class actions are not expressly established under local laws and regulations. Notwithstanding that omission, courts can decide on lawsuits filed by multiple plaintiffs against the same defendants and for the same event, provided that all parties are named and included in the lawsuit.

Some regulations such as the General Law for Protection of Consumers' Rights (No 358-05) provide the right for associations to file a claim on consumer protection. Article 94 of the said regulation indicates that the association must be organised and in existence as a non-governmental organisation (NGO) and that in order to seek payment of damages, the association must have express authorisations from consumers.

There are no prohibitions for lawyers to provide clients with a cost estimate of the potential litigation at the outset.

In general terms, interim application/motions do not exist in the Dominican Republic in the same terms that are applicable in other jurisdictions. Notwithstanding, similar measures can be requested after the process is initiated, such as the following.

Application for Injunction

Parties are allowed to request injunction measures. However, this request is subject to a special procedure and different rules with the holding of a hearing before a different judge (the president of the court) which is called “referimiento”.

Application for Extension of Time

Parties may request an extension of the period for the depositing of evidence.

Other Requests

During the first hearings, and before the final arguments, one of the parties may request that the judge transfers the file to another tribunal because this second tribunal is hearing a matter that has a significant connection (same parties and related subjects) with the first claim pursuant to the provisions of Article 28 et seq of Law No 834 of 1978, which amends the Dominican Civil Procedure Code. Likewise, other requests in order to avoid potential fraudulent behaviour are available, as explained in 6.1 Circumstances of Injunctive Relief.

Early judgment requests or strike-out requests are not permitted.

Dispositive motions are not regulated in this jurisdiction; however, similar requests to judges by the parties are permitted.

As indicated in 3.6 Failure to Respond, if the defendant does not respond to or attend the hearing the plaintiff may request the forfeiture of the defence without further arguments or production of evidence. This procedure also applies when the plaintiff does not attend the hearing, in which case defendants are entitled to request the dismissal of the claim without the production of any evidence (defecto por falta de concluir).

If during the hearing of the claim the parties arrive at an agreement then they can request the closing of the case. In addition, after three years (counted from the claim or the last procedural action), the defendant may request the caducity of the claim.

Third parties with an interest may join a process pursuant to the provisions of Article 337 et seq of the Dominican Civil Procedure Code in a process called "intervention". There are two types of intervention:

Voluntary Intervention

A party with an interest in the claim makes a request to the judge to be considered part of the process. The request must be in writing and indicate the grounds of the intervention.

Compulsory or Forced Intervention

One of the party requests by means of bailiff act that a third person takes part in the process.

This type of order can only be requested during the conclusions and it will be ordered by the judge along with the final decision. In this regard, Article 130 of the Civil Procedure Code indicates that every losing party shall bear the costs of the process.

Costs are calculated in accordance with Law No 302 of 1964, mentioned above. This regulation states the amounts payable at the different stages of the procedure, but the rates indicated in that regulation are substantially below the market price and accordingly they are not commonly used in practice. Judges can enforce parties’ dispositions if the costs are agreed upon.

Costs of the entire process are calculated as indicated in 4.5 Applications for Security for Defendant's Costs. There is no separate process to regulate costs related to requests made by the parties before final conclusions.

There is no estimated timeframe for a court to deal with this type of request. Certain requests due to their nature are decided during the hearing, other ones are decided with the final decision. However, injunctions as indicated in 4.1 Interim Applications/Motions are subject to a special procedure that is more expedited. The decision on the request is issued within one or two months.

Discovery in the terms that exist in common law are not applicable in Dominican civil and commercial procedures. Our civil law system favours the production of documents, presented by the interested party to prove its facts and arguments. However, courts may compel a party to produce evidence in civil and commercial cases, pursuant to the provisions of Article 55 of the Dominican Civil Procedure Code. It is important to note that these types of decisions are uncommon.

Production of documents and witness testimony are allowed in the jurisdiction in the terms explained in 5.4 Alternatives to Discovery Mechanisms.

Article 55 of the Dominican Civil Procedure Code mentioned above provides for the production of evidence that is in the hands of third parties. The request should be made in writing and the judge will review its relevance. 

There are no express rules regarding privileged documents or any other rules which allow parties to not disclose certain documents. Certain exceptions based on the nature of the information (such as a trade secret and banking secrecy), as indicated in 5.6 Rules Disallowing Disclosure of a Document, may apply.

The parties provide the evidence under the principle of onus probandi, which states that the party that alleges the affirmative of any proposition must prove it. During the first hearings of civil and commercial cases, judges commonly order a short-term period for the parties to be allowed to make deposit of documents. This deposit is made in the secretary’s office of the court.

In addition, if it is requested by the parties, judges may order testimonial information or personal appearance of the parties if they consider it relevant for the case. The production of this type of evidence is regulated under the provisions of Law No 834 and includes the holding of a special hearing to hear witnesses.

The Code of Ethics for Lawyers provides that lawyers are under a duty of professional secrecy and sets the terms of this obligation. The regulation refers to lawyers in general without making a distinction of in-house counsel. Notwithstanding this, in-house counsel in their condition as employees of the company are subject to a confidentiality duty pursuant to the provisions of the Dominican Labour Code.

In addition, it is important to point out that Article 378 of the Dominican Criminal Code provides that any persons who receive confidential information in the exercise of their profession are forbidden to disclose this information unless it is required by judges.

Special provisions may apply due to the nature of the information. In this regard, trade secrets are protected pursuant to the provisions of Law No 20-00 on Industrial Property Rights and Law No 42-08 of Competition Law. These regulations set forth the scope of protection of this type of information and the terms on which to consider information as a trade secret. Likewise, Law No 172-13 on Protection of Personal Data provides that certain authorisations are required if personal data information is shared.

Banking secrecy is also regulated in this jurisdiction by the Monetary Law, whereby financial agents are legally compelled to keep in secret the deposits received from the public in segregated ways that reveals the identity of the individual. Personalised backgrounds on such operations can only be revealed to its holder or the person that this expressly authorises through any of the authentic means admitted in the law.

As indicated in 4.1 Interim Applications/Motions, injunctive relief exists in the Dominican Republic under a process called “referimiento”. Article 101 et seq of Law 834 regulates this special and expedited process. It is a process designed in order that the judge may take urgent measures that are provisional.

There are different types of “referimiento” and different types of petitions can be made; however, their distinctive characteristic is their urgency. 

In addition, other measures of this nature are available for plaintiffs to secure debtors’ assets. These measures are only available for a party with credible grounds and a secured credit.

Otherwise, a request before the competent judge is required. Among the measures available are: freezing of bank accounts or other financial instruments, inscription of the claim in the title deed of the property, mortgages to prohibit the sale or encumbering of real property.

The process can take several weeks before hearings are held. However, under urgent circumstances and if the party has an authorisation of the judge, a request for the holding of a first hearing within a short period of time may be granted if it is demonstrated the urgency (extrema urgencia). In this last scenario the request is known in an expedited way and a decision can be obtain within days.

The majority of the process is adversarial. However, a plaintiff with secured credits may request some of the measures indicated in 6.1 Circumstances of Injunctive Relief on an ex parte basis (ie, request to the Registry of Title for the registration of the mortgage in the title deed).

In certain cases, if the plaintiff does not have a secured credit he may request the authorisation of the judge for taking some of the measures such as freezing the bank accounts of the debtor pursuant to the provisions of Article 558 of the Dominican Civil Procedure Code. This process is also performed ex parte. However, after freezing the bank accounts the plaintiff needs to fulfil a procedure that involves communicating the situation to the defendant.

Only if the respondent proves the existence of vexatious litigation can the applicant be held liable for damages. In cases of vexatious litigation, the lawyer of the applicant may be subject to a disciplinary sanction before the Dominican Bar Association (“Colegio Dominicano de Abogados”). 

The measures indicated in this section can only be taken over specific assets.

The measures indicated above can be taken over the defendant’s assets. However, in certain cases, these assets are in the hands of third parties (such as banks or depositories) and the measure can be taken in order to prevent disposal of the asset.

With the decision of the judge the claimant can take executive measures over the assets of the respondent. Likewise, in order to guarantee compliance judges may order coercive fines (astreinte).

Civil and commercial matters are primarily conducted in writing. During hearings interventions are often limited to the formulation of petitions. As indicated in 5.4 Alternatives to Discovery Mechanisms, the presentation of witnesses as evidence is allowed only if it is considered relevant for the case. Accordingly, the process is primarily conducted in writing with limited interventions during hearing for the purposes of making specific petitions to the judge.

There is no time limit for the conduct of hearings. Civil hearings are usually held in the morning until noon and several hearings are held. Recently, certain courts are implementing the conduction of hearings during the afternoon.

First hearings (where it is common to order a period for providing written evidence) could last less than an hour, other hearings (production of other types of evidence and conclusions) can be longer.

There are no jury trials in the Dominican judicial system.

During civil cases different types of evidence are allowed. Written evidence, sworn oath and confession are considered as perfect evidence. Likewise, there are other types of evidence that may be produced such as witness testimony and personal appearance. Depending on the nature of the case (if it is a legal fact or a legal act) a hierarchy of the evidence applies. Notwithstanding, in the majority of civil and commercial cases written evidence is the most commonly used.

Law No 834 regulates the production of the evidence during the trial. Article 49 et seq provide the rules regarding written evidence, the time when this evidence should be submitted and admissibility conditions.

Expert testimonies are allowed in criminal cases. In civil and commercial cases, a special procedure indicated in articles 302 et seq of the Dominican Civil Procedure Code applies for the provision of an expert report. The expert is appointed by the parties or, if there is disagreement, by the judge. Three experts are appointed and, after taking oaths, experts will initiate their work that will end with the issuance of the report. This process is not commonly used; parties usually provide expert reports in writing.

Legal proceedings are public pursuant to the provisions of Article 87 of the Civil Procedure Code and Article 17 of Law No 821 of 1927. Due to their public nature, hearings are open to the public (except minors). Certain matters, fundamentally those involving family law and rights of minors, are not open to the public.

Judges are responsible for conducting the hearings. Since orality in commercial and civil matters is limited, the intervention of judges commonly relates to control of the parties or witnesses or to maintaining order. In civil and commercial claims decisions at the hearing are limited to simple requests – ie, if the party requests additional time to deposit evidence or if the party has requested to the judge to refer the process to another judge as indicated in 4.1 Interim Applications/Motions.

There is no specific timeframe for proceedings since it will depend on the measures taken during the course of the trial and the availability of dates for holding of the hearing depending on the caseload of the court. A process in which the parties have not requested a considerable amount of execution of measures (ie, testimonies) can take approximately seven months.

The validity of settlement agreements is not subject to the court's approval. These settlements are executed under the principle of the free will of the parties pursuant of Article 1134 of the Dominican Civil Code which states: “Legally formed covenants have the enforceability of laws between the Parties. They cannot be revoked, except by mutual consent, or by the causes permitted by law.”

A settlement can remain confidential if the parties so agree.

Settlements among the parties are definitive and can only be challenged due to specific matters (Article 2052 of the Dominican Civil Code). In case one of the parties does not comply with the terms agreed, the other party can take executive measures over the goods of this non-performing party.

As indicated, settlement agreements are binding on the parties. In order to set aside an agreement one of the parties needs to prove that the agreement was invalid, for example that it is void due to an absence of consent or that the signature is false. The claimant will need to prove this in a new claim before a court which is subject to a special process (inscripción en falsedad).

The judge will decide based on the initial claim of the plaintiff or the response of the defendant, accepting parts of the request or the entire request of one of the parties. The awarding of remedies not requested by the party could be considered an ultra petita decision and void by a superior court.

The Dominican legal system does not recognise punitive damages. In the jurisdiction there are compensatory damages and moral damages (affecting aspects of the individual or an emotional aspect of the individual). Damages are evaluated by the judge, who has the sovereign power to assess them. The decision should include the elements used to evaluate the damages by the judge. There are no rules limiting maximum damages; however, damages must be certain and proved.

In contractual disputes and pursuant to the provisions of Article 1149 of the Dominican Civil Code the plaintiff is entitled to receive damages for the losses and the sums that he was deprived from gaining (daño emergente and lucro cesante). Most recently, courts have also accepted the notion of cost of opportunity as a basis for damages.

There are no provisions for pre-judgment interest in the Dominican Republic. However, as indicated in 6.7 Consequences of a Respondent's Non-compliance, in the final decision judges can order payment of interests to guarantee execution. This will consist in a payment of a specific amount for each day of default. However, different decisions about this legal measure have been recently issued by the Supreme Court of Justice and the Constitutional Court, including considerations about the nature of this measure as cautionary to guarantee the execution of the decision rather than an economic benefit for the plaintiff.

The first step for the enforcement of a domestic judgment is the notification by bailiff act to the losing party. The successful party must wait during the appeal period, which is one month in civil and commercial matters (Article 443 of the Civil Procedure Code) in the case of a judgment at first instance. If it is a judgment of the Court of Appeal, the period of appeal against a judgment before the Supreme Court of Justice is 30 days (Article 7 of Law 3726 of September 23, 1953). Once this period has passed, the judgment acquires an irrevocable authority.

Pursuant to Law No 544-14 on Private International Law in the Dominican Republic, foreign awards may be enforced through an authorisation or exequatur rendered by the Civil and Commercial Chamber of the Court of First Instance of the National District, with the exception of judgments on the following matters: administrative law, arbitration and bankruptcy.

The levels of appeal will depend on the nature of the claim and the amounts involved. In general terms, decisions on claims initiated in courts of first instance can later be appealed before the courts of appeal. These decisions can later be challenged before the Supreme Court of Justice only to examine the fair application of the law (Recurso de Casación). The Supreme Court of Justice will evaluate the decision based on specific matters such as: incorrect application of the law; excess of power, incorrect and/or insufficient motivation, distortion of the facts, violation of the defence rights, the incompetence of the tribunal, violation of the forms, lack of legal basis.

Appeals are available to final decisions of the courts. The deadline for appealing decisions in civil and commercial matters issued by the court of first instance is 30 days from the date of notification of the decision. Parties can appeal parts of the whole decision on different grounds. The Court of Appeal, if the appeal complies with certain formalities, will evaluate the case on the same terms as it was heard in first instance. Accordingly, parties are allowed to provide evidence and request similar measures procedural measures. Appeals before the Supreme Court of Justice are based on the grounds of an incorrect application of the law.

Parties have 30 days after the notification by bailiff act of the judgment to appeal the decision (Article 443 of the Dominican Civil Procedure Code). Notwithstanding this, if a losing party has knowledge of the decision by the secretary of the court it may appeal the decision. The appeal needs to be notified by means of a bailiff act at the domicile of the person, otherwise it will be considered invalid.

As indicated in 10.2 Rules Concerning Appeals of Judgments, before the Court of Appeal there will be a re-hearing of the parties and they will be allowed to submit evidence since facts are evaluated by this court. The appeal may be based on errors or mistakes of facts or law. Appeals before the Supreme Court of Justice are limited to the evaluation of a correct or incorrect application of the law by the courts of appeal and facts are not evaluated in this instance.

The court does not impose conditions on granting an appeal.

The decision of the Court of Appeal can either annul the judgment and make a different and new decision or confirm the judgment of the court of first instance.

The losing party is responsible for paying the costs of litigation. However, as indicated in 4.5 Applications for Security for Defendant's Costs, these costs are calculated in accordance with Law No 302 of 1964 which sets forth specific amounts that are below market price. Accordingly, in the majority of cases, parties bear their own costs including attorneys’ fees.

Costs are calculated in accordance with the Law No 302 of 1964. This regulation states the amounts payable at the different stages of the procedure, but the rates indicated in this regulation are substantially below the market price and accordingly they are not commonly used in practice. Judges can enforce parties’ dispositions if the costs are agreed upon.

In order for costs to be awarded, lawyers must request payment in their favour during their conclusions pursuant to the provisions of Article 133 of the Dominican Civil Procedure Code. The Supreme Court of Justice has considered this a private matter; accordingly, it cannot be granted if it is not expressly requested.

Interest is not awarded on costs.

The use of alternative dispute resolution (ADR) methods has increased considerably during the last decades. Although arbitration remains the most commonly used, the implementation of other methods such as conciliation and mediation is increasing in the jurisdiction.

The Dispute Resolution Centre of the Chamber of Commerce and Production (CRC) provides mediation and conciliation services for interest parties. Parties can also enter into mediation based on ad hoc procedures. In this case, the parties will be subject to the fulfilment of the provisions of the CRC Rules for Mediation and Conciliation.

Specific regulations provide for a process of mediation or conciliation as alternative dispute resolution, in some cases mandatory. Law No 173-66 explained in 3.1 Rules on Pre-action Conduct is an example of a mandatory ADR, likewise the Labour Code of the Dominican Republic indicates in Article 516 et seq a mandatory preliminary conciliatory process.

Certain rules of regulated sectors provide the possibility in case of specific conflicts for one of the parties to request the initiation of a conciliation process. Such cases are the General Law for Protection of Consumers' Rights (Law No 358-05) and General Law of Telecommunications (Law No 153-98) and its rules of application. 

Likewise, and subject to a special procedure provided by the law, Law 141-15 on Restructuring and Liquidation of Companies and Business Persons provides for a special conciliation process.

Special institutions such as the CRC of the Chamber of Commerce and Production, indicated above, provide professional aid to parties seeking ADR methods. The process before this institution is governed by clear rules. CRC constantly promotes ADR as well as the academic and professional preparation of the mediators and conciliators that are part of this institution.

The Law No 489-08 on Commercial Arbitration of the Dominican Republic (Law No. 489-08) is the general legal framework applied to all arbitrations conducted within the territory of the Dominican Republic.

Article 41 of Law No 489-08 indicates the process of recognition and enforcement of awards. The enforcement of local awards initiate with a request before the courts of first instance of the place of issuance of the award. The procedure for the recognition and enforcement of an award, including foreign awards as explained in 13.4 Procedure for Enforcing Domestic and Foreign Arbitration, may take from 60 to 90 days, approximately. If the decision approving the recognition is challenged within the month of its notification, the competent Court of Appeal will know and decide the claim in sole instance in accordance with Law No 489-08 and the corresponding international convention on the matter. This latter process can take approximately nine to 12 months.

In addition, Law 181-09 enacted on 6 July 2009, which modifies Law 50-87 of the Chambers of Commerce, updated and modernised an institutional procedure for the dispute resolution centres of the respective Chambers of Commerce in the country.

There are only a few subject matters that are not considered arbitrable by Article 3 of Law No 489-08: 

  • conflicts related to the civil status of individuals, donations and legacies of nourishment, shelter and clothing, separation between husband and wife, guardianship, minors and interdicted or absent individuals; 
  • causes related to public policy; and 
  • in general, all disputes not subject to settlement.

Law No 489-08 (Article 39) sets forth the grounds for challenging an award, which are in essence those provided by the New York Conventions on the Recognition and Enforcement of Foreign Arbitral Awards. Awards can be challenged on the following bases: 

  • a party of the arbitration was affected by some incapacity or the agreement is not valid under the law to which the parties have subjected it or under domestic law; 
  • there has been a disregard of the rules of the proceeding that results in a violation of the rights of defence of a party;
  • the award deals with a dispute not contemplated in the agreement or decisions that exceed the matters of the arbitration agreement. Nevertheless, if the decisions on matters submitted to arbitration can be separated from those not submitted, only that part of the award may be set aside;
  • the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of the law which the parties cannot derogate, or, failing such agreement, was not in accordance with the law;
  • the matter of the dispute is not arbitrable under the laws of the Dominican Republic; and 
  • the award is in conflict with public policy of the Dominican Republic.

Foreign awards may be enforced through an authorisation or exequatur rendered by the Civil and Commercial Chamber of the Court of First Instance of the National District, pursuant to the provisions of Law No 544-14 on Private International Law in the Dominican Republic.

During the exequatur proceedings, the court will not be able to hear arguments on the merits and is limited to verifying whether the judgment was issued in accordance with the laws and does not create a conflict with public policy.

As a contracting state to the Panama and New York Conventions on the Recognition and Enforcement of Foreign Arbitral Awards, and in accordance with the New York Convention and the Dominican Law on Commercial Arbitration, the Dominican Republic recognises the execution of foreign arbitration awards through the exequatur process indicated above.

Medina Garrigó Abogados

Gustavo Mejía Ricart No.102,
corner of Abraham Lincoln
Edif. Corporativo 20/10, S 904, Piantini
Santo Domingo
Dominican Republic

+809 683 4422

ldiaz@mga.com.do www.mga.com.do
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Law and Practice in Dominican Republic

Authors



Medina Garrigó Abogados is a boutique law firm founded in the Dominican Republic by Fabiola Medina Garnes in 2004, under the name Medina Garnes Asociados. Since its inception, the firm has acquired extensive experience assisting clients in handling legal matters in the areas of telecommunications, administrative law, taxation, litigation and alternative forms of dispute resolution. Additionally, following a strategy of careful and steady growth in recent years, MGA has been able to expand its law practice to include new areas of the law, thus developing a broader and comprehensive practice, with emphasis in providing services with the highest standards of quality, cost-efficiency, and focused on client-based solutions.