ORDINARY VERSUS SUMMARY PROCEEDINGS IN THE DUTCH CARIBBEAN
Interlocutory or summary proceedings provide for immediate relief
Article 110 of the Netherlands Antilles and Aruba Code of Civil Procedure (‘the Code’) provides that all adversarial proceedings shall be initiated by means of a petition to the court of first instance. Proceedings so initiated are ordinary proceedings a.k.a. proceedings on the merits.
A petitioner may opt for preliminary relief proceedings (a.k.a. interlocutory proceedings; ‘kort geding’). Article 226 of the Code provides that in urgent cases which require an immediate decision, the plaintiff may request a provisionally enforceable judgement (‘beslissing bij voorraad’).
Article 229 of the Code provides that a provisional …
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THE SUPREME COURT OF THE KINGDOM OF THE NETHERLANDS IN CIVIL PROCEEDINGS
It serves the whole Kingdom
The Kingdom of the Netherlands is comprised of three separate jurisdictions, the Netherlands (i.e.: the part of the Kingdom located in North Western Europe), the Netherlands Antilles and Aruba. The Netherlands Antilles and Aruba have their own code of civil procedure, which in certain respects is similar, but not identical to the Dutch Code of Civil Procedure. The Supreme Court of the Netherlands also serves as the Supreme Court of the Netherlands Antilles and Aruba.
The Netherlands Antilles and Aruba have courts in the first instance (‘Gerecht in Eerste Aanleg’) and a joint court of …
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STANDARDS OF DUE PROCESS IN THE NETHERLANDS ANTILLES AND ARUBA
The Supreme Court applies strict standards
The European Convention for the Protection of Human Rights and Fundamental Freedoms (‘EVRM’), including Article 6, which safeguards the right of due process, applies to the standards of due process applicable in the Netherlands Antilles and Aruba.
Article 6, first sentence, EVRM, reads as follows: “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”. The requirement of a ‘fair hearing’ has been consistently interpreted by …
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RESOLUTION OF PROBLEMS IN OR OUTSIDE THE COURT?
Arbitration
A party can initiate legal proceedings in a court of law to solve a legal dispute. Alternatively, the parties may opt to appoint one or more persons (arbitrators) to decide on the dispute and by whose decision they both agree to be bound.
Why would one opt for binding dispute resolution (arbitration) over regular litigation? There are several reasons to do so:
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LAW FIRM MARKETING
It is not about size
In many cases and for many clients, the size of a law firm is not of much importance. What is important may differ from client to client, however the following more or less general concepts will undoubtedly play a role: the attitude of the professional, the quality of the services provided, timely response, personal attention, the ability to stand in the client’s shoes, creativity and pricing.
Law firm marketing should therefore focus on the clients and not on the firm itself. Many law firms put too much emphasis on their size, the number of offices …
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NEGOTIATIONS IN THE DUTCH CARIBBEAN ARE SUBJECT TO THE PRINCIPLE OF GOOD FAITH
Disclosing or investigating?
Under Dutch Caribbean law, during negotiations parties enter into a contractual relationship governed by good faith. This means that each party should take into account the justified interests of the other party. Each party should also take reasonable steps to avoid the other party reaching an agreement based on false assumptions.
When should a party investigate or disclose? The extent to which a party, e.g. a buyer, has a duty to investigate depends on the factual circumstances of the particular transaction, including its nature and complexity. The other party, the seller, has a duty to disclose certain …
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INTERNAL LIABILITY OF MANAGING DIRECTORS UNDER DUTCH CARIBBEAN LAW
Review without the benefit of hindsight
The basic rule regarding the duty of a managing director is set forth in article 2:14 Netherlands Antilles Civil Code, which provides that each managing director has an obligation towards the company to properly perform the duties assigned to him. It follows from case law and legal doctrine that a managing director can only be held liable if serious negligence in the performance of his duties is attributable to him. Although a director could contractually limit his liability under article 2:14 of the Civil Code, it should be noted that the conduct not covered by …
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MiFID: WILL IT AFFECT THE DUTCH CARIBBEAN?
Markets in Financial Instruments Directive
MiFID is an EU directive which provides a harmonized regulatory regime for investment services for all members of the European Economic Area and which became effective on 1 November 2007. MiFID’s objectives are to increase competition – and thus to make the price of corporate finance deals more competitive – and to increase consumer protection in investment services. MiFID removes barriers between stock exchanges and creates a single European financial market, a level playing field.
The Directive requires, inter alia, that investors be categorized as professional or retail clients to ensure the right level of protection. However, …
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JUNIOR VERSUS SENIOR DEBT IN THE DUTCH CARIBBEAN
High versus lower ranking debt
A corporate take-over can be financed with debt and/or equity. For example, the current management of a company (the target) could incorporate a corporate vehicle (Newco) to acquire the shares of the target, while Newco is financed by banks or other lending institutions.
Banks are typically senior debt holders, meaning that their debt is secured and/or has a higher priority than other debt, i.e. junior debt. Junior debt is a.k.a. subordinated debt.
Senior debt may be provided by one bank or a consortium of banks. In case of a syndication a bank ‘sells’ a portion …
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PROMOTING GAMBLING AND GAMING FROM THE DUTCH CARIBBEAN
No specific law about advertising
In the Netherlands Antilles there is no specific law relating to advertising or promoting on-line gambling/gaming; subsequently there are no restrictions on advertising and promoting these games to Netherlands Antilles citizens or citizens of other nations.
Please note that the “Ordinance on agreements concluded electronically” (’Landsverordening overeenkomsten langs elektronische weg’), which became effective on 1 January 2001, requires an offeror of ‘commercial communication’, e.g. through the Internet, to mention, inter alia, and if applicable, the name, place of establishment and address of the offeror; effective contact details of the offeror; registration details relating to the offeror; the …
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TRANSFER OF STATUTORY SEAT WITHIN THE KINGDOM OF THE NETHERLANDS
A remedy against extraordinary events
Upon the occurrence of certain extraordinary events, such as war, or immediate danger of war, or a revolution, a transfer of seat of a company is possible to other parts of the Kingdom, i.e., the Netherlands and Aruba (Act on Voluntary Transfer of Seat; ‘Rijkswet vrijwillige zetelverplaatsing van rechtspersonen’). The transfer of seat has the legal effect that the Netherlands Antilles company, an NV or BV, becomes a Dutch company, again an NV or BV, or an Aruban company.
The procedure for this transfer of seat basically involves an amendment to the articles. In the event …
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WILDERS ANTI-KORAN FILM: THE NETHERLANDS FEARS ATTACKS ON PEOPLE AND PROPERTIES
Calls to kill Mr. Wilders should be strongly condemned
Freedom of expression is one of the cornerstones of the Dutch democracy. Within the boundaries of the law, one may say whatever one wants to. However, even within these boundaries, expressing one’s view can be highly irresponsible, especially if the purpose thereof is to demonize and offend others. The Dutch politician Geert Wilders is a symbol of zero-tolerance and a champion of disrespectful remarks, and thus of irresponsible behavior.
I very much oppose the ideas and tactics of Geert Wilders, and if only half of what is said about the provocative …
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