THE PROSPECTUS OF A NETHERLANDS ANTILLES BASED INVESTMENT FUND
A prospectus may not be misleading
A closed-end investment fund is a fund that does not redeem its own shares. A semi open-end or semi closed-end fund may redeem shares, yet it is not obliged to do so or does not do so unrestrictedly. A so-called open-end investment fund is obliged under the conditions set thereto to redeem shares in its capital and thus has no discretionary power. In connection herewith one also speaks of ‘continuous issuance and purchase of participation rights’ (in case of shares).
It is not uncommon that a prospectus is used by a fund to offer …
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JOINT COURT OF APPEAL OF THE NETHERLANDS ANTILLES AND ARUBA RULES ON BANKRUPTCY ISSUES
Claim of post-bankruptcy creditor denied
The case: Instead of waiting for final judgments in several validation proceedings, the trustees in bankruptcy entered in a settlement agreement with several creditors. In case the agreement is left out of consideration, the winding up of the bankrupt estate will result in a surplus of some millions of guilders. All the creditors in the bankruptcy will therefore be paid for 100%. If following the winding up of the bankrupt estate there are still assets remaining, as will be the case with this bankrupt, then these must be used in the first place to pay …
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DUTIES OF A BANKUPTCY TRUSTEE IN THE NETHERLANDS ANTILLES
The trustee must also look after the bankrupt’s legitimate interests
In general, the main function of the bankruptcy trustee is to realize and distribute the assets of the bankrupt person or company. The aim is to enable the creditors of the bankrupt estate to receive as large a share of the proceeds of the assets as possible after the fees and costs have been paid. The main duty is thus to sell the assets and share the money among the creditors. A.o. he has to investigate the financial affairs of the bankrupt and, e.g. whether certain transfers or obligations are …
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THOUGHTS ON FINANCING YOUR PRIVATE COMPANY
The more you invest yourself, the easier you get financing
If you have plenty of assets, you just walk into a bank and ask them to lend you the money you need (debt financing). As long as these assets are marketable, getting the loan won’t be too difficult. However, there are alternatives, e.g. private investors or investment companies, providing equity or debt financing.
It goes without saying that you will need a business plan. In the event of a start-up this plan may be rather rudimentary, but you still need one. Getting capital for your business is not the same as …
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WHERE TO KEEP TAX DATA UNDER THE LAWS OF THE NETHERLANDS ANTILLES?
No specific restrictions
For Netherlands Antilles tax purposes and according to the General Ordinance on National Taxes (this law contains general rules applicable to the income tax, wage tax, profit tax, ship registration tax, conveyance tax, inheritance and transfer tax, ground tax, turnover tax (SXM) and sales tax) there are some statutory requirements for keeping documents but there are no specific restrictions as to keep them within the Netherlands Antilles.
A company is obliged to supply the Inspector of Taxes (on his request) with data and information which is or can be significant for the levy of taxes from itself. …
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CUSTOMER DATA AND BANK SECRECY RULES IN THE NETHERLANDS ANTILLES
Customer data must be kept confidential
Bank secrecy rules protect the confidentiality of customer data. Customer data is any information relating to an identified or identifiable customer. Bank secrecy rules apply to all information relating to any banks business or information which the bank obtains in the course of business or contractual relationship.
Netherlands Antilles civil law has no specific rule concerning banking secrecy. However, the Netherlands Antilles Civil Code implies a duty of confidentiality for a bank. In addition, a general contractual duty of care (i.e. a duty to provide services of a proper standard) is also implied from …
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LIABILITY FOR FRAUDULENT ACCOUNTS UNDER THE LAWS OF THE NETHERLANDS ANTILLES
Liability of directors could be an issue
Can directors of a company be held liable for inappropriate or fraudulent bookkeeping without being involved in this themselves and without having any knowledge about this? The reasoning would then be, that such directors have committed a tort towards those who have incurred damages by relying upon the company’s (consolidated) accounts, in that they ignored e.g. indications that the companies were being used for fraudulent purposes. Tort would thus be based on the lack of care, to prevent to become instrumental in a fraudulent scheme.
Netherlands and Netherlands Antilles case law as it …
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EMERGENCY MEASURES IN RESPECT OF BANKS IN THE NETHERLANDS ANTILLES
The Central Bank may apply for emergency measures
The Ordinance on the Supervision of Banking and Credit Institutions 1994 (the “Ordinance”) contains two important definitions:
“credit institution“: an undertaking or entity which as an important part of its business obtains moneys, whether repayable directly or in due course, whether in the form of savings or against issue of one or more types of debt acknowledgements, and grants credits for its own account;
“international credit institution“: a credit institution which is obtaining or extending funds, as the case may be, abroad and to which an exemption has been granted from articles …
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REPLACING A BANKRUPTCY TRUSTEE IN THE NETHERLANDS ANTILLES OR ARUBA
Replacing a trustee requires justification
The Netherlands Antilles or Aruban bankruptcy judge may at any time after having heard or after having properly summoned the bankruptcy trustee (‘curator’), dismiss the trustee and replace him by one or more other trustees. This can be done at the request of the debtor, the trustee himself, another trustee, one or more creditors, the commission of creditors, or by the judge on its own motion.
The debtor therefore in the vent of bankruptcy, also has the right to ask for replacement of the trustee. There are no provisions in the law that stipulate by …
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PRIVATE PLACEMENT EXCHANGE ON ARUBA
Leading Dutch business journal “NRC Handelsblad” article on AESX and PPDAQ
1st August 2006
*Start capital on an Aruban exchange market
There is a capital market revolution going on in Aruba. Small start up companies can now raise funds at the electronic stock exchange platform AESX.
The scarcely lit law office of Andin Bikker is situated opposite the azure blue Caribbean Sea. Here, on the outskirts of Aruba’s capital Oranjestad, Bikker thought up his brainchild AESX; an electronic stock exchange for micro exchange markets for small and new businesses, of which the private placement exchange PPDAQ …
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MEMBERS OF THE MANAGING BOARD OF AN ARUBAN COMPANY
No minimum or maximum number
Aruban law does not contain any provision as to the minimum or maximum number, nationality, residence etc. of the managing directors of an Aruba limited liability company (‘NV’). The only requirement that may be deducted from the Commercial Code of Aruba is that there is a board of managing directors. The number of managing directors is completely left to the discretion of the incorporators and afterwards the shareholders of the company.
However, in order to qualify for a business license, the company should have at least one local managing director or a local representative. This …
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FORCED SHARE-TRANSFER UNDER THE LAWS OF ARUBA
The articles of association may contain quality-requirements
According to the guidelines for the incorporation and for the amendment of articles of association of Aruban corporations, the articles of association of a limited liability company (‘NV’) may create an obligation to transfer stock in case certain specific circumstances occur – which circumstances have to be specified in the articles – such as bankruptcy, deprivation of the power to manage assets, or liquidation of a shareholder being a legal entity. The articles may also establish the requirements with which the shareholders have to comply, such as being a limited partner of a …
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