VOLUNTARY AND STATUTORY LIABILITY UNDER THE LAWS OF THE NETHERLANDS ANTILLES
A director-in-fact can be held liable too
Under Netherlands Antilles legislation, it is possible for a company’s shareholders voluntary to be held liable for its debts. For instance, the articles of private limited liability companies may provide that holders of shares or a specific class of share shall be personally liable for certain or all liabilities of the company (article 2:202, paragraph 5 Civil Code). Another example would be one in which a parent company voluntarily assumes liability for debts of its subsidiary by entering into an agreement with the subsidiary’s creditor(s) or by issuing, for example, a ‘strong’ letter of comfort.
A potential claim may arise out of statutory liability also. Under Netherlands Antilles law, a managing director may be held liable to the company if he has not acted with due care. Case law says that a managing director is only liable if he has seriously failed in the performance of his duties. This is determined on the basis of all relevant circumstances, such as the competence and due care that is expected from a managing director who is prepared for his duties and fulfils them in good faith. However, the action can only be brought either by the company itself or by a receiver in bankruptcy.
In case a company would be declared bankrupt, any person who has determined the policy of a company as if he were a director can, pursuant to article 2:16 Civil Code, be held liable by the bankruptcy trustee of the company for the deficit in the bankrupt estate of such company, provided that there has been mismanagement and this was an important cause of the bankruptcy. Such a director-in-fact may, under certain circumstances, include a parent company, if it has directly interfered with and put aside the subsidiary’s actual board of directors. These facts would of course have to be put forward and, in case of challenge, would have to be proven. Creditors of the bankrupt company, however, do not have a direct claim on the parent company on the basis of said provision.
Karel Frielink
Curacao-based Attorney (lawyer) / Partner
