STATUTORY REQUIREMENTS FOR KEEPING DOCUMENTS BY CREDIT INSTITUTIONS UNDER NETHERLANDS ANTILLES LAW
It is advisable to consider a custody term of 20 years
Pursuant to article 42 of the National Ordinance on the supervision of Bank and Credit Institutions 1994 (‘Landsverordening toezicht bank- en kredietwezen’) a credit institution is obliged to, during at least 10 years, keep all letters, records, and data carriers in respect of its business activities and the movements in all accounts held by the credit institution in its own name and in the name of third parties. This 10 year period is also the length of the period during which pursuant to the Civil Code, a legal entity in general is obliged to keep all letters, records, and data carriers in respect of the business activities and financial position of the company.
According to article 7 of National Ordinance Identification when Rendering Financial Services (‘Landsverordening identificatie financiÎle dienstverlening’), a credit institution is obliged to keep client data for a period of 5 years from the date of termination of the agreement with the client, or, as the case may be, for a period of 5 years from the date of execution of the following financial services: (i) the effecting of payments in connection with the cashing of coupons, comparable bond documents or comparable securities, or (ii) assistance regarding transactions or evidently related transactions of over ANG 20,000.
If both Ordinances apply, the longest term prevails. Pursuant to the Civil Code all claims prescribe (verjaren) after a period of 20 years, unless the law states otherwise. This means that after this 20 year period it is no longer possible for a client or any third party to commence proceedings against a credit institution.
Therefore, if a credit institution feels that any of its documents could give rise or be relevant to possible disputes with a client and/or could be used as evidence for the benefit of the credit institution in possible disputes with clients, it is advisable to consider a custody term of 20 years. An exemption to the 20 year period applies in case of claims of clients or any third parties regarding payment of interest on sums of money, annuities, dividends, rents and other periodical payments that are due within 1 year. Such claims can no longer be instituted after a period of 5 years as from the date the aforementioned payment is due.
Karel Frielink
Attorney (Lawyer) / Partner
