THE TERMINATION OF A MORATORIUM AS THE RESULT OF A COMPOSITION UNDER THE LAWS OF THE NETHERLANDS ANTILLES AND ARUBA
The composition must be adopted by the creditors and be approved by the court
Under Netherlands Antilles and Aruban law, a moratorium of payment (‘surséance van betaling’) is a legal concept distinct and separate from bankruptcy (‘faillissement’). The Bankruptcy Ordinance (‘Faillissementsbesluit’) provides for two types of proceedings: bankruptcy in which the debtor’s assets are liquidated to pay creditor’s claims, and suspension of payments (moratorium) whereby the debtor is given temporary relief against pressing creditors in order to reorganize and continue in business and ultimately to satisfy creditors’ claims.
The moratorium can be terminated by adoption of a so-called composition; adoption …
Read the rest »
CURACAO IS THE PEARL AND THE CAPITAL OF THE CARIBBEAN
Curacao has a friendly tax climate, too
Curacao is part of the Kingdom of the Netherlands. International financial services form an important pillar of the economy of Curacao. Other important sources of income include tourism, oil refining and shipping. The financial sector is supported by a number of international banks offering a wide scale of services. All of the larger international audit firms are represented on Curacao.
Curacao has an active representative interest group called the Curacao International Financial Services Association (’CIFA‘). CIFA consist of almost all market participants, including funds, administrators, corporate service providers, …
Read the rest »
15 DECEMBER 2008 WILL BE D-DAY
The Netherlands Antilles as such will cease to exist on ‘Kingdom Day 2008’
On 15 December 2008, Sint Maarten will become an autonomous island within the Kingdom of the Netherlands. Sint Maarten’s position can best be compared to that of Aruba: a full nation status within the Kingdom of the Netherlands. This has been agreed by all parties involved yesterday (click here for the transition agreement in Dutch).
On that very same 15 December 2008, Bonaire, Sint Eustatius and Saba (a.k.a. K3, after the Dutch word ‘klein’, which means ‘small’) will become special overseas municipalities of the Netherlands. Although they will be …
Read the rest »
RETAINING AND DIGITALIZING RECORDS UNDER THE LAWS OF THE NETHERLANDS ANTILLES
Annual accounts must be retained in paper form
Under Netherlands Antilles law there are several laws and regulations containing provisions relating to the retaining of records. Amongst others, such provisions can be found in the Civil Code, the Commercial Code, tax and social security legislation etc. With respect to specific banking activities, the National Ordinance on the Supervision of Bank and Credit Institutions and the National Ordinance Identification when rendering Financial Services are the most relevant regulations.
For example, the Netherlands Antilles Civil Code requires a company to keep its accounts and retain relevant data in such a manner that …
Read the rest »
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 …
Read the rest »
RESIDENT OR NON-RESIDENT IN THE NETHERLANDS ANTILLES: DOES IT MATTER?
For tax purposes it does
The Netherlands Antilles tax system is based on the residency principle. Residents are subject to tax on their world wide income and assets. Non-residents could be subject to Netherlands Antilles tax depending on the source principle.
These principles apply both to the inheritance and gift tax as the personal income tax. For both taxes the definition of a resident is broad. The law states: ”where a person is resident depends on the circumstances”. Where does one actually live? And for how many days a year? Where does one work and receives one’s salary?
Karel Frielink …
Read the rest »
CREATION OF SECURITY INTERESTS IN SHARES OF A NETHERLANDS ANTILLES COMPANY
Conflict of laws aspects
For Netherlands Antilles conflict of laws, the creation of security interests in shares has, like the transfer of shares, aspects of both the law of obligations and the law of property.
The contract establishing an obligation to create a security interest is governed by the EC Convention on the Law Applicable to Contractual Obligations. Consequently, in the absence of a choice of law, the law of the habitual residence or central administration of the contractual party who transfers his shares as security (or whose shares are encumbered with a right in rem) will apply.
The law …
Read the rest »
MINORITY VERSUS MAJORITY SHAREHOLDERS UNDER THE LAWS OF THE NETHERLANDS ANTILLES
Several protection mechanisms available
Netherlands Antilles law provides for several important statutory rules which can protect a minority shareholder. For instance, on the basis of the principles of reasonableness and fairness incorporated in section 2:7 of the Netherlands Antilles Civil Code, a controlling shareholder has to take into consideration the interests of his fellow minority shareholders in taking decisions which affect the interests of minority shareholders.
Other examples are section 2:21 Civil Code regarding the nullification of resolutions which could be used to block a resolution that is desired by the majority shareholder (e.g. when the resolution is contrary to …
Read the rest »
PROVISIONS IN THE ARTICLES OF ASSOCIATION TO PREVENT EXCESSIVE DIVIDEND DRAWS
Much room for withholding and distribution rules
With respect to the ‘risk’ of (excessive) dividend draws, it is not necessary to give all shares a right to share in the profits. If a company has shares with different par values, the articles of association will have to contain a provision dealing with each right to share in the profits.
Further, as a general rule the law stipulates that the general meeting of shareholders will decide on distribution or withholding of profit as well as making other distributions from the equity capital, and that every shareholder has a right to an …
Read the rest »
STRUCTURING A NETHERLANDS ANTILLES LIMITED LIABILITY COMPANY
Much freedom is given to the shareholders
In general, Netherlands Antilles corporate law provides (much more than Dutch law) for free choice of organization of a NV or BV by way of the articles of association. It gives shareholders much freedom to organize things as they see fit. For example, a company may issue non-voting shares or shares with restricted voting rights. A company may even issue shares and determine in the articles of association that they lapse after a certain period of time. Also, a company may issue non-transferable shares. Further, it can be determined in the articles of …
Read the rest »
PROTECTING THE iPHONE TRADEMARK UNDER THE LAWS OF THE NETHERLANDS ANTILLES
Much ado about iPhones and trademarks
Last week at the much-anticipated Macworld event in San Francisco, Apple launched a new handheld mobile phone device under the name iPhone. The launch of Apple’s iPhone has been long awaited. The iPhone combines different products, a mobile phone; a widescreen iPod with touch controls; and an Internet communications device, into one small and lightweight handheld device.
But now another well-known company, Cisco Systems, is suing Apple for trademark infringement in a US federal court, for using the name iPhone. What the ultimate outcome of this infringement …
Read the rest »
THE LIABILITY OF AN EMPLOYEE VIS-A-VIS HIS EMPLOYER UNDER THE LAWS OF THE NETHERLANDS ANTILLES
His failure must be of certain gravity
In general, employees are liable for damage caused by them in the performance of their work which is claimed against their employer by third parties as well as for damage they have caused to their employer’s property. However, such liability exists only where the occurrence of the damage is deemed to have involved deliberate intent or serious negligence on their part (cf. art. 6:170 par. 4 and art. 7A:1615da Netherlands Antilles Civil Code).
If an employee embezzles money that belongs to his employer, the ground for liability vis-a-vis the employer would, in fact, …
Read the rest »