DEBT ISSUANCE UNDER THE LAWS OF THE NETHERLANDS ANTILLES
Credit linked notes (CLNs)
The relevant rule in respect of the issuance of CLN’s is article 45 of the Netherlands Antilles Banking Decree, which read as follows:
“It is prohibited to any person to attract moneys from the public or extend credit to the public by others than licensed credit institution.”
If the NV or BV issuing the CLNs does not have a license to act as credit institution, dispensation should be requested from this prohibition. The Netherlands Antilles Central Bank has issued guidelines for dispensation of debt issuing entities from the prohibition of article 45. The Central Bank will …
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CORPORATE REPORTING REQUIREMENTS IN THE NETHERLANDS ANTILLES
Regular versus large NV
Each year, within eight months after the lap of the fiscal year, financial statements have to be drawn up by the board of a limited liability company (NV or BV): a balance sheet, a profit and loss statement and an explanatory note. Such statements have to be presented to the annual meeting of shareholders for adoption. The statements must be in accordance with generally accepted standards. There is no obligation to appoint an (external) auditor. There are no filing or publication requirements. Except for members of the board and supervisory directors (if any), the shareholders are …
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INSIDER TRADING RULES IN THE NETHERLANDS ANTILLES
Insider trading is prohibited
The Netherlands Antilles Ordinance on the Supervision of Stock Exchanges 1998 contains articles regarding insider trading/dealing. These articles (8 and 9) contain certain rules with respect to “insider dealing” transactions performed in or from the Netherlands Antilles.
In general it is prohibited for anyone (including an issuer), once it is reasonable to assume that securities will be listed, to enter into or bring about a transaction concerning such securities in or from the Netherlands Antilles when in possession of advance knowledge with respect to the issuing company or the trade of its securities.
Karel Frielink Curacao-based …
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THE STRUCTURE OF A NETHERLANDS ANTILLES (CURACAO) FUND
It is easy and not expensive to set up a SPV
From a legal point of view, establishing a fund in Curaçao has become very attractive since under new corporate law a private limited liability company (besloten vennootschap) can be established very quickly and very flexible. Virtually everything is possible with this new legal entity. There is no minimum issued share capital requirement. Incorporation can be done within a day and without the need for any prior governmental approvals. It is possible to split voting rights and dividend rights. There is no statutory requirement to have shares with a par …
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WHAT IS PIERCING THE CORPORATE VEIL?
Ignoring the legal personality of a company
A shareholder is not personally liable for acts performed in the name of the company and is not liable to contribute to losses of the company in excess of the amount which he must pay to the company as contribution for his shares. Therefore, there is a legal separation between the assets and liabilities of the company and those of the shareholder.
Piercing the corporate veil in its purest form means making a shareholder responsible for the actions of the company. It thus means ignoring the separate legal identity of the company. An …
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PRINCIPLES OF THE LEGAL PROFESSION
Principles recognized by the European Court of Justice in the Wouter case (C-309/99)
Created in 1960, the Council of Bars and Law Societies of Europe (CCBE) is the officially recognized representative organization for the legal profession in the European Union (EU) and the European Economic Area (EEA). The CCBE represents over 700,000 lawyers through its member bars and law societies.
The CCBE has adopted a charter of core principles of the European legal profession. The Charter contains a list of 10 principles concerning lawyer’s independence, confidentiality and avoidance of conflicts of interest. It seems to me …
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TAX QUESTION REGARDING A YACHT
Can a vessel be bought without paying taxes on the sale?
Question: I am residing in the US and want to buy a yacht from a company established in the Netherlands Antilles (Curacao). The yacht is registered in a foreign country as a private yacht. Is it possible to purchase the vessel without paying taxes on the sale? In Florida, non resident purchasers who remove the vessel from Florida waters within the designated time frame are exempt from sales and use tax. Alternatively, they can close the deal in international waters (which is defined as 12 nautical miles and beyond) …
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THE LIABILITY OF AN EMPLOYER IN THE CASE OF AN ACCIDENT
Accident followed by a ‘sex drive’
According to the 13 December 2006 edition of Times On Line, a Christian newly-wed has filed a £3.5 million compensation claim against his employers, saying that his marriage was ruined because his sex drive spiraled out of control after he injured his head at work. He claims that the accident led to severe sexual disinhibition, which is destroying his marriage. In September 2005, judgment was entered in favor of the victim on the basis of 100 per cent liability. The judge must now decide how …
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STATUTORY MERGERS UNDER THE LAWS OF THE NETHERLANDS ANTILLES
A notarial deed is required
A statutory merger involves at least two legal entities. The law uses the terms acquiring and disappearing legal entity. The law specifies that only legal entities having the same legal form may merge, specifying that a BV (closed limited liability company) and a NV (public limited liability company) are considered to be the same. Statutory mergers are used mostly within a group of companies.
Essential for a statutory merger is that all assets and liabilities of one legal entity transfer as a whole to another legal entity. An actual transfer, therefore, does not take place.
A POWER OF ATTORNEY UNDER THE LAWS OF THE NETHERLANDS ANTILLES AND ARUBA
Unauthorized agents are personally liable
A power of attorney is a right that the principal grants to a person to perform legal acts (including contracts) in his name. The person who receives the power of attorney obtains the right to represent his principal. The granting of a power of attorney is a unilateral legal act. There are no formal requirements for a power of attorney; however, if the legal act to be performed by the attorney must comply with certain formalities the same formalities apply to the power of attorney.
In the event a legal act is performed in the …
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GENERAL CONDITIONS UNDER THE LAWS OF THE NETHERLANDS ANTILLES AND ARUBA
General conditions may be nullified
Since 1 January 2001 the Netherlands Antilles Civil Code (CC) contains a section on general conditions. By including this section in the CC the legislator tried to strengthen the judicial supervision on the terms of general conditions in order to protect the contracting party against the use of general conditions, since, generally, they have no knowledge of or influence on the contents of these conditions.
The CC gives a broad definition of a general condition. When a certain clause or condition is used in a number of contracts the clause or condition is considered a …
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REGULATORY ASPECTS OF NETHERLANDS ANTILLES INSURANCE BUSINESS
A license is required
The insurance business in the Netherlands Antilles is regulated by the National Ordinance on the supervision of the Insurance Business
Insurance companies (i.e., entities which make it their business to offer insurance products) established in the Netherlands Antilles and insurance companies with a statutory seat outside the Netherlands Antilles which have an establishment in the Netherlands Antilles, are required to obtain a license from the Central Bank (Bank of the Netherlands Antilles).
Provision of insurance services in the Netherlands Antilles without the required license (or registration if it concerns brokers) constitutes an economic offence. In principle, economic …
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