NO DERIVATIVE ACTION IN ST. MAARTEN
A claim based on tort is possible though
St. Maarten law does not provide for a derivative action. According to Section 2:3 subsection 1 of the St. Maarten Civil Code, for the purposes of patrimonial law (i.e. the law of property, rights and interests and the law of obligations) a legal person (e.g. an NV or BV) is equated with a natural person, except where this would be contrary to the law.
Said Section prevents (majority and minority) shareholders from claiming damages from a third person (including current or former members of the management board and co-shareholders) for any damage that this third person has caused their company. Only the company itself, as a subject under the law, can claim damages from such third person; the mere fact that the shareholders’ shares have declined in value is not grounds for a separate action by the shareholders.
This matter was first decided in the cases of Poot v. ABP, Hoge Raad (Dutch Supreme Court) 2 December 1994, NJ 1995, 288, and Constance et al. v. Noro et al., Gemeenschappelijk Hof van Justitie van de Nederlandse Antillen en Aruba (Joint Court of Appeal of the Netherlands Antilles and Aruba) 13 December 1994, SJD 1994, 498.
A shareholder suffering derivative damage may commence proceedings against, for instance, the management board of the company or co-shareholders based on tort (‘onrechtmatige daad’). An important requirement for a direct action by the shareholder suffering derivative damage, is that the wrongdoer committed a tort vis-à-vis the shareholder (i.e., violated a specific duty of care towards that shareholder).
Karel Frielink
Attorney (Lawyer) / Partner
(19 July 2014)
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