LEGAL ACTION AGAINST A CURACAO TRUSTEE
Who can bring an action?
If the trust assets have been prejudiced, the action can be brought by any co-trustee. Unless provided for to the contrary in the trust deed the action can also be brought by a protector or beneficiary on the understanding that the compensation is paid as soon as possible to a Trustee not being the Trustee who violated his duties (Section 3:143 subsection 4 Curacao Civil Code {‘CCC’}). The question is to whom the protector has to pay the compensation if there is no co-trustee. This question is not answered in legislation, but in practice in …
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MY VIEW ON THE LIABILITY OF A CURACAO TRUSTEE
The Reference Trustee
The trust originates from Anglo Saxon law. On designing the Curacao trust system the systems in other jurisdictions have obviously been studied. However, the Curacao trust is a civil law and not a common law trust. Therefore in answering the question of the (possible) extent of the liability as given shape in Book 3 Curacao Civil Code (‘CCC’), a connection should be sought with the law of Curacao (and elsewhere in the Kingdom) and not with foreign legal systems.
The fact that the Trustee has a position of trust, as laid down by law, does not, according …
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CURACAO TRUSTEE HAS A DUTY OF CARE
Trustee is liable if he fails to exercise due care
A duty of care is justified in those cases where someone entrusts his financial or other interests to another or takes care of these himself with the assistance of the other, particularly because that other possesses more knowledge and experience in that field. The law formulates as a general standard that the Trustee is liable if he fails to exercise due care as a good Trustee unless he cannot be blamed for the failure (Section 3:143 subsection 1 Curacao Civil Code {‘CCC’}). This relates to a duty arising from the …
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THE CURACAO TRUSTEE
Breach of trust results in liability
Usually a Curacao trust office (service provider) uses one of its own public limited liability companies (NVs) or private companies with limited liability (BVs) to provide the services. This in-house NV or BV will then for instance become the managing director of the client company. A trust office offering services as a Trustee will usually also do this in the form of an in-house NV or BV who will act as the Trustee. The Trustee will be able to fulfill this role with regard to multiple trust assets.
For third parties it is important …
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POWERS AND OBLIGATIONS OF A CURACAO TRUSTEE
Brief summary
On 1 January 2012, new legalization entered into force pursuant to which it is now possible to set up a trust, similar to the trust in Anglo-Saxon common law jurisdictions, in Curacao (a civil law jurisdiction).
Here follows a brief summary of several of the powers and obligations of a Trustee:
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TYPES OF LIABILITY IN CURACAO
A three-part distinction
With regard to liability a three-part distinction can be made. The first distinction relates to the basis of the liability: liability pursuant to a contractual relationship (the attributable failure in this respect) and liability pursuant to a wrongful act.
Another distinction relates to the personal liability (thus for the party’s own actions or omissions) and vicarious and/or strict liability: liability for or the acts and omissions of others (vicarious liability) or liability for certain things that happen (strict liability).
For example, employers can be held vicariously liable for certain actions of their employees. According to the Curacao …
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CURACAO CREDIT INSTITUTIONS
Prudential supervision
The Curacao regulatory legislation applicable to credit institutions provides for requirements with regard to the prudential supervision in general. Such prudential supervision sees to the liquidity and solvency position of a bank without going into further detail for instance as to the safekeeping of assets or maintaining of accounts of third parties.
The Curacao legislation provides for reporting requirements that need to be submitted to the Central Bank of Curacao and St. Maarten (CBCS). However, these requirements apply only to banks regulated in Curacao.
On the basis of such reports and accounts the CBCS has the authority to …
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CURACAO SHOULD ESTABLISH A CONSTITUTIONAL COURT
Speech by Karel Frielink, President of the Curacao Bar Association, given on Friday 21 September 2012 on the occasion of the inauguration of three judges of the Joint Court of Justice of Aruba, Curacao and St Maarten and of Bonaire, St Eustatius and Saba
Madam President! Excellency! Ladies and gentlemen!
“Our government, our parliament and our judiciary are the cornerstones of the sustainable, positive development of our Country. With our belief in God we shall enjoy His protection, for blessed are those whose God is the Lord. We shall pull together and serve our Country with love in equality …
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INTERNATIONAL CREDIT INSTITUTIONS IN CURACAO
Banking business abroad
Credit institutions (banks) in Curacao are subject to the National Ordinance on the Supervision of Banking and Credit Institutions 1994 (the NOSB). The NOSB makes a distinction between ‘credit institutions’ and ‘international credit institutions’. The NOSB defines a credit institution as an institution that to an important extent makes its business of:
An ‘international credit institution’ is defined as a credit …
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SEMINAR CURACAO TRUST
Curacao Trust is expected to become a popular alternative to foreign trusts
On 1 January 2012, new legalization entered into force pursuant to which it is now possible to set up a trust, similar to the trust in Anglo-Saxon common law jurisdictions, in Curacao (a civil law jurisdiction).
On 28 August 2012, a seminar was held by Van Doorne (Amsterdam) and Spigt Dutch Caribbean (Curacao), entitled: The Curacao Trust in Practice. Lecturers: Professor Jan de Boer, Maike Bergervoet, Jeroen Starreveld, Jan Willem Schenk, Davina Mansur and Karel Frielink. The event was attended by more than 150 representatives of the financial …
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CIVIL PROCEEDINGS IN CURACAO
Information for foreign plaintiffs
Are there any particular issues that concern foreign plaintiffs in Curacao? If proceedings on the merits are initiated by a non-resident plaintiff, the defendant may ask the court to order that the plaintiff provide security for damages, costs and interest which it might be liable to pay as a result of the judgment in aforementioned proceedings. This ‘cautio judicatum solvi’ does not apply if there is a Convention (Treaty) on legal proceedings between Curacao and the plaintiff’s country.
Can attorney costs for legal proceedings be recovered? Generally speaking, each party has to bear its own attorney …
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OLIE EN GAS IN CURACAO
Wie krijgt de opbrengst?
Of er olie en gas in de bodem onder en rond Curacao zit die op economisch interessante wijze kan worden gewonnen weten we niet. Ruzie maken over die vraag doen de politici natuurlijk wel. Stel dat er olie- en gasvoorraden zijn en dat die naar boven gehaald kunnen worden, naar wie gaat dan bij verkoop de opbrengst? Kan Nederland zich die opbrengst toe-eigenen, zoals sommige politici suggereren?
Het antwoord is nee.
De soevereiniteit van Curacao strekt zich uit tot de territoriale zee: het zeegebied dat zich uitstrekt tot maximaal 12 zeemijlen uit de basislijn (ongeveer 22 …
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