THE ANNULMENT OF A DECISION BY A CORPORATE BODY UNDER DUTCH CARIBBEAN LAW
Annulment requires a court decision
A resolution of a Netherlands Antilles corporate body (NV, BV, association or foundation) may be declared null and void when there is no quorum, majority, proposal, nomination and proposal for appointment or authorization required by the corporate code or its articles (section 2:21 par 1 Netherlands Antilles Civil Code). A resolution shall further be null and void if and for so long as there is no approval of another constituent body required by the corporate code or the articles.
Every minority shareholder may request to annul a decision of a corporate body (section 2:21 par 3 NACC), for example because the decision is in conflict with the principles of reasonableness and fairness (section 2:7 NACC). It is possible that the general meeting of shareholders adopts a resolution that is not in the interest of the minority shareholders. For example, without justification the general meeting of shareholders decides not to pay dividend but to reserve the profits of the preceding financial year. The most appearing problem of minority shareholders is how to get their profits when the majority is not willing to make a decision.
Annulment is effected by a decision of the court of the corporation’s residence upon application against the corporation by a person who has a reasonable interest in the due performance of the obligation which has not been performed. When the general meeting of shareholders has ignored the interest of the minority shareholders and there is no reasonable reason for doing so, the resolution could be contrary to the principles of reasonableness and fairness according to which the parties have to act. The court can set aside the decision and adopt a decision instead of the general meeting of shareholders (section 3:300 NACC).
Karel Frielink
Curacao-based Attorney (lawyer) / Partner
