THE LOCATION OF SHARES UNDER NETHERLANDS ANTILLES LAW
Where are the shares and where can they be seized?
The Netherlands Antilles has a broad range of possibilities for creditors to get security for an alleged claim, even before judgement. Suppose you want to collect a claim and you are considering putting certain or all of your counterparty’s assets under arrest (freezing/seizing assets or conservatory attachment) to secure payment. If among those assets are shares in a company, the question arises in which country you should ask permission for an arrest.
Under Netherlands Antilles international private law, the general rule is that the ‘lex rei sitae’ determines who holds legal title to movable assets and whether they can be put under arrest. In other words, this is determined by the laws of the country in which the goods are actually located. Under Netherlands Antilles law, bearer shares qualify as movable assets. If the shares in the capital of a Netherlands Antilles company are in Germany, German law determines whether they can be arrested (put under attachment).
According to Netherlands Antilles international private law, as far as registered shares are concerned, the question who holds such shares and whether they can be put under arrest is determined by the laws of the jurisdiction of incorporation (‘incorporatiestelsel’) of the company whose shares it concerns. If a (foreign) debtor holds shares in a company incorporated in the Netherlands Antilles, a petition for an arrest should be filed with the Court of First Instance. The petition which bears the judge’s leave is subsequently presented to the bailiff who actually effects the arrest on the shares by serving a writ to that effect on the company. Subsequently, proceedings against the (alleged) debtor should be initiated within a certain timeframe. Such proceedings may be initiated in the Netherlands Antilles or abroad.
Karel Frielink
Attorney (lawyer) / Partner
