LIABILITY OF SUPERVISORY DIRECTORS UNDER THE LAWS OF THE NETHERLANDS ANTILLES
Only if improper performance can be seriously imputed to him
The general rule under Dutch Caribbean law is that a supervisory board member is only liable for the improper performance of his duty in case this can be seriously imputed to him. It must be noted that the tasks of supervisory directors differ from the tasks of managing directors. The supervisory board is charged with the supervision of management and the general course of affairs within the company and the enterprise belonging to it.
Since management is the responsibility of the managing board, actions for mismanagement will therefore usually be directed against it or the managing directors. A supervisory board (member) may be held liable on a similar footing to that of the managing board, e.g. when it acts temporarily in place of the managing board, as it may do for instance in cases of a conflict of interest between the board of managing directors – or one of its members – and the company. However, a negligent or improper decision of the board of managing directors is not automatically attributed to the board of supervisory directors merely by reason of its (tacit) approval thereof.
In principle, leaving aside specific grounds for possible liability, e.g. for erroneous or misleading financial statements, liability will only be under discussion if the supervisory board has been seriously negligent in conducting its advisory and/or supervisory duties. A supervisory board member may exonerate himself by proving that any shortcoming cannot be imputed to him. In this respect circumstances such as a division of tasks between members e.g. set forth in the articles of incorporation – or in an internal agreement – must be taken into account. However such division of tasks cannot exonerate a supervisory board member completely.
Karel Frielink
Curacao-based Attorney (lawyer) / Partner
