THE CENTRAL BANK OF THE DUTCH CARIBBEAN
There is only one financial regulator
The Netherlands Antilles have one financial regulator: the Central Bank of the Netherlands Antilles (‘Bank van de Nederlandse Antillen’). The Central Bank is a separate legal entity (‘rechtspersoon’) having its seat at Curaçao.
The Central Bank is also an independent administrative body (‘zelfstandig bestuursorgaan’) and is therefore not subject to the political responsibility of the Minister of Finance.
The Central Bank’s most important objectives are to maintain the external stability of the Netherlands Antillean guilder and to promote the efficient functioning of the financial system in the Netherlands Antilles.
The Central Bank supervises, a.o., …
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TIME-SHARE UNDER THE LAWS OF THE DUTCH CARIBBEAN
Part-time apartment right or right of use
Since the entering into force of the Netherlands Antilles Timeshare National Ordinance (‘Landsverordening regeling gebruik in deeltijd van onroerende zaken en aanpassing appartementsrecht’), a new regime for timeshare business is applicable.
According to the Explanatory Memorandum to the Ordinance, a timeshare right can be considered as a part-time apartment right (‘deeltijdappartementsrecht’) or as the purchase of part-time right of use of an immovable property (‘koop van rechten van gebruik in deeltijd van onroerende zaken’). Such part-time right can be a right in rem (‘zakelijk recht’) or a right in personam (‘persoonlijk recht’).
The …
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TAXATION OF PENSHONADOS IN THE DUTCH CARIBBEAN
Two systems available
For years the Netherlands Antilles have an attractive fiscal arrangement for people who want to settle on the Netherlands Antilles after their (early) retirement, the so-called Penshonados. The arrangement entails a relatively low tax rate, in which depending on the circumstances one can make a choice between two different taxation systems. In order to benefit from the Penshonado Regulation, certain conditions will have to be met.
Two systems of taxation are available to a Penshonado. Unless the income from foreign source is higher than Antillean Guilder or ANG 2,267,000 (around USD 1,260,000) usually the first method of …
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FORCED BUY-OUT OF MINORITY SHAREHOLDERS UNDER DUTCH CARIBBEAN LAW
The court determines the purchase price
According to Netherlands Antilles law, a shareholder who holds at least 95% of the outstanding capital in a company (NV or BV) may initiate court proceedings to buy-out the minority shareholders. The articles of association may provide for another percentage, provided it is not less than 90%. Whether or not the majority shareholder has a particular reason to buy-out the minority is, in principle, of no relevance.
The court may decide to appoint an expert to advise on the determination of the purchase price of the shares. To establish the purchase price, the Court …
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STATUTORY INTEREST UNDER THE LAWS OF THE DUTCH CARIBBEAN
Notice of default not always required
According to article 6:119 Netherlands Antilles Civil Code, whenever a debtor is in default, he must pay compensation to the creditor, this compensation consists of the statutory interest. The statutory interest is calculated and accumulated to the amount due every year. In the case that a higher interest than the statutory interest was agreed between the parties, this higher interest will prevail during the default.
The law prescribes when the default starts. In many cases it starts after the debtor has received a notice of default. However, there are exceptions to this rule. One …
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INTERIM-RELIEF PROCEEDINGS IN THE DUTCH CARIBBEAN
Interim-relief can be obtained relatively quickly
Such proceedings (a.k.a. injunction proceedings) start, as most proceedings in the Netherlands Antilles, with filing an initial request with the court. The latter will take care of serving the writ of summons onto the defendant(s). The court then will fix a date for the hearing within two weeks after the filing of the initial request.
After the hearing, the court will render its judgment usually within one week. Although the judgment will only be a provisional measure, it would – if in favor of the claimant – most probably serve its purpose as it …
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LIABILITY OF SUPERVISORY DIRECTORS UNDER THE LAWS OF THE NETHERLANDS ANTILLES
Only if improper performance can be seriously imputed to him
The general rule under Dutch Caribbean law is that a supervisory board member is only liable for the improper performance of his duty in case this can be seriously imputed to him. It must be noted that the tasks of supervisory directors differ from the tasks of managing directors. The supervisory board is charged with the supervision of management and the general course of affairs within the company and the enterprise belonging to it.
Since management is the responsibility of the managing board, actions for mismanagement will therefore usually be …
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PRIVACY VERSUS FREEDOM OF SPEECH IN THE DUTCH CARIBBEAN
Freedom of speech prevails most of the time
Free press is a cornerstone of our democracy. Journalists report on bad things that happen in our community. They want to know what happened, why it happened and who were involved. It is custom to mention suspects by full name, but journalists should at all times make efforts to remain impartial and to protect a person’s private life from unjustified or sensational exposure to the public.
It goes without saying that the public interest for information and the interest of the suspects’ privacy must be balanced. If the suspect is a juvenile, …
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LICENSE REQUIREMENT FOR INVESTMENT INSTITUTIONS IN THE DUTCH CARIBBEAN
Applications to be filed with the Central Bank
The National Ordinance on the Supervision of Investment Institutions and Administrators 2002 (‘Landsverordening toezicht beleggingsinstellingen en administrateurs’, the “NOSIIA”) prescribes a license for all Investment Institutions, unless:
(i) the participation rights therein are not offered, nor are monies or other goods for participation therein requested or obtained, in or from the Netherlands Antilles.
The words “or obtained” indicate that the NOSIIA will also be triggered where investments were unsolicited. The NOSIIA applies to (a) all Investment Institutions, which are established in the Netherlands Antilles, wherever their investors or potential investors are located …
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MICROSOFT’S FATE: OUTSTANDING PERFORMANCE LEADS TO PUNISHMENT
Microsoft’s success created a forbidden dominant position
According to Mrs. Neelie Kroes, the European Union competition commissioner, Microsoft is abusing its dominant position because is is failing to comply with a three-year-old anti-trust ruling that it deliberately makes its Windows (now Vista) operating system incompatible with rival companies’ servers used to print and share files. The EU fined Microsoft a record €497m in its March 2004 ruling and a further €280.5m in July 2006 for failing to comply.
According to Microsoft, which appealed against both fines and the ruling, Mrs. Kroes is undermining its intellectual property rights.
On 17 September 2007, …
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CURACAO RECEIVES TOP RANKING IN GLOBAL CUSTODIAN HEDGE FUND ADMINISTRATION SURVEY
Curacao is ranked #1
According to the 2007 Global Custodian Hedge Fund Administration Survey, Curacao (Dutch Caribbean) is the # 1 location for hedge fund administration services. Curacao outperformed Singapore, Dublin, Toronto, Hong Kong, Luxembourg, Amsterdam and the Cayman Islands, to name just a few.
Curacao is known for its excellent legal and tax infrastructure, high quality of services and reliability. For further info on hedge funds and Curacao’s professional environment: click here.
Karel Frielink Curacao-based Attorney (lawyer) / Partner
DUTCH CARIBBEAN TAXATION OF SPECIAL PURPOSE VEHICLES
Certain rulings are available
Quite often a Netherlands Antilles NV or BV (Special Purpose Vehicle or SPV) is used for securitization purposes. The Netherlands Antilles corporate taxation will depend on the kind of vehicle used for SPV. Please note that the below only applies if the SPV is a resident of the Netherlands Antilles for Netherlands Antilles corporate income tax and (if applicable) tax treaty purposes. Consequently, certain substance requirements should be fulfilled in the Netherlands Antilles.
If the SPV is a BV (private limited liability company) or NV (public limited liability company) it will generally be taxed on a profit …
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