PROPOSED REVIEW DUTCH CARIBBEAN LEGISLATION ON CONFLICTING INTEREST
The proposed bill gives shareholders more freedom
Earlier in 2010, a draft bill was proposed to amend the Corporate Code (Book 2 Civil Code) of Curacao, St. Maarten, Bonaire, St. Eustatius and Saba (which formerly constituted the Netherlands Antilles). Among other things, the provisions with regard to conflicting interest have been thoroughly reviewed and strongly curtailed.
The basic rule provides that the authority with regard to certain legal acts involving the legal entity and its Managing Director (e.g., agreements between the legal entity and its director) as well as lawsuits between a legal entity and its Managing Director rests with the Supervisory Board. If the company has no Supervisory Board, this authority rests with the general meeting or a person or body to be appointed by the general meeting for that case. With regard to a foundation this person or body is appointed by the Court at the request of any interested person (Article 2:11 paragraph 1 proposed bill). This rule can be deviated from in the Articles of Association. It is also possible in a by-law laid down by the general meeting pursuant to the Articles of Association. With regard to a foundation such a by-law must be laid down by a body other than the Board (Article 2:11 paragraph 2 proposed bill). For the company limited by shares (‘NV’) with an independent Supervisory Board within the sense of Article 2:139 Civil Code, it is not possible to deviate from Article 2:11 paragraph 1 Civil Code (Article 2:140 paragraph 5 proposed bill).
It speaks of ‘the authority’ with regard to specific acts with a conflicting interest. This not only covers the authority to pass resolutions on this point but also the representative authority. Resolutions and acts of representative authority which are contrary to this rule are null and void. If and insofar an effect on third parties is involved, this effect is determined by Article 2:22 paragraph 2 BW. The law leaves those drawing up Articles of Association fully free to write the rule completely out or on the contrary to provide a different more encompassing rule, for instance by creating a rule for a qualitative or indirect conflicting interest.
Karel Frielink
Attorney (Lawyer) / Partner
(6 December 2010)
.
