CORPORATIONS AND THEIR ALTER-EGOS UNDER THE LAWS OF THE NETHERLANDS ANTILLES (II)
Reverse pierce of the corporate veil?
For tort I shall briefly discuss the position under Netherlands law (as opposed to Netherlands Antilles law), as most relevant literature and case law on this point was written towards Netherlands law. It should be noted that in theory the Netherlands case law to a certain extent may apply by analogy to an NV or BV under Netherlands Antilles law, as both systems are based on the same legal concepts and share the same Supreme Court. However, in practice the “by analogy” interpretation is still a hurdle which needs to be taken, as Netherlands Antilles corporate law differs substantially from Netherlands corporate law.
Under Netherlands law shareholders have successfully been held liable on the basis of tort, inter alia when they had insight into and control over the corporation, and transferred assets from the corporation to themselves or an affiliated corporation, or otherwise diminished the recourse of creditors. In addition they have been held liable when they were intensively involved in the corporation and gave the impression to creditors that their claims against the corporation would be satisfied. When a shareholder is also a managing director of the corporation, his potential liability increases. The shareholder’s liability in such cases was based on a tort committed by the shareholder itself, as a result of which the counterparty incurred damages. The same rules apply in my view to piercings of the corporate veil in the reverse direction. Please note that even on the basis of tort, shareholders liability and reverse piercings of the corporate veil are quite rare in the Netherlands and the Netherlands Antilles.
If Netherlands Antilles law were to apply to such cases, I believe the best chances of a reverse pierce of the corporate veil would exist if it can be argued that the NV or BV committed a tort vis-à-vis another party, as a result of which that other party incurred damages. In the absence of such arguments there is a theoretical option of basing a claim on identification, but this option is quite a long shot.
Karel Frielink
Attorney (Lawyer) / Partner
