THE PERSONAL LIABILITY OF A DIRECTOR OF A NETHERLANDS ANTILLES COMPANY
Act of tort required
The existence of a claim on a corporation does in itself not cause any liability for the officers or directors of that company to arise. Outside a bankruptcy case, such a liability may only be construed if the claim on the corporation remains unpaid and then only if there is a separate tortuous act by such individual director or officer against the creditor of such claim. At all times, it must be shown that there was a personal wrongdoing by the director or officer involved: the mere capacity does never result in a liability.
In general, a director of a corporation will be deemed to have acted tortuously towards a creditor if the director involved on behalf of entered into an obligation on behalf of the corporation, whilst he knew at that time, or should so have known, that the corporation would be unable to timely meet that obligation and would offer no resource for the resulting claim of the creditor.
Instead of personally entering into the obligation on behalf of the corporation (i.e. personally signing the document from which the obligation results) other close involvement with the entering into of such obligation may suffice.
Under Netherlands Antilles law, there is no separate category ‘officers’ apart from ‘directors’. Although even non-directors could be held personally liable, in practice it would be most difficult to establish the factual basis for such liability.
Karel Frielink
Curacao-based Attorney (lawyer) / Partner
