WITNESSES IN THE NETHERLANDS ANTILLES
Preliminary hearing of witnesses
Although witnesses are most commonly heard during legal proceedings, they may be heard before. The preliminary hearing of witnesses is a special procedure created to avoid unnecessary proceedings or proceedings based on a mistaken legal assumption or mistaken identity. A request to examine witnesses prior to the proceedings is made to the court of the place where a majority of the witnesses are domiciled, or to the court that would be competent to hear the case if proceedings were initiated.
Witnesses may also be heard during the proceedings, but prior to the time that witnesses …
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A NETHERLANDS ANTILLES COMPANY: ANGLO-SAXON AND/OR CONTINENTAL?
Shareholder primacy versus stakeholder approach
The Anglo-Saxon model (USA, UK) can be characterized as follows:
– the corporation is a continuation of the shareholders; shareholders primacy; and
– the main aim of the corporation is to maximize profits.
The continental model (continental Europe, Netherlands Antilles, Aruba and Japan) on the contrary:
– the corporation is a combination of different interest parties all having an own aim and interest, among which the employees, creditors, shareholders and also the protection of the environment being amongst others the interest of the society; and
– the object of the corporation is more continuity of …
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TODAY IS JERRY HOFF’S BIRTHDAY
Jerry is a confident terrier
According to Chambers and Partners, the Amsterdam based attorney Jerry Hoff is one of the key litigation partners at Spigthoff Attorneys & Tax Advisers, and is described by clients as “a bright and sharp operator“.
Jerry studied corporate law at the University of Leiden. Started as an in house lawyer with the ABN AMRO bank. Since 1990 worked as an attorney with Loeff Claeys Verbeke and later as a partner with Loyens & Loeff. A three year posting in Singapore and Indonesia. Worked as consultant to the IMF and the World Bank and was closely …
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TERMINATION OF AN EMPLOYMENT AGREEMENT FOR URGENT CAUSE
The cause must be material
A party to an employment agreement may be confronted with situations in which one cannot reasonably be expected to continue the employment relationship. If the employee causes this situation, the employer is entitled to terminate the agreement without notice and with immediate effect and without any permit being required.
Examples for urgent cause are gross negligence in the performance of duties, theft, fraud etc. and intentional damage to the employers reputation and/or property.
The cause must be material and communicated to the employee at the shortest possible notice preferably in writing and must be urgent …
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A MORATORIUM OF PAYMENT IN ARUBA AND THE NETHERLANDS ANTILLES
Temporary relief
The objective of a moratorium (‘suspension of payment’) is reorganization. In many cases, however, it is the first step towards bankruptcy. The most important benefit of a moratorium is that the debtor is given temporary relief against pressing creditors in order to reorganize and continue in business and ultimately to satisfy creditors’ claims.
The nature of a Netherlands Antilles’ and Aruban moratorium differs substantially from a moratorium under US law (Chapter 11) and does, for example, not cause pending proceedings to be stayed. Ensuring that all creditors are satisfied is the primary aim of a moratorium and not …
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THE STORAGE OF TAX RELATED DOCUMENTS
Statutory requirements for keeping documents
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 {St. Maarten} and sales tax) there are some statutory requirements for keeping documents. However, there are no specific restrictions as to keep them within the Netherlands Antilles.
Some of the rules are as follows:
– A company is obliged to supply the Inspector of Taxes (on his request) with data and information which is …
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A SHARE TRANSFER UNDER NETHERLANDS ANTILLES LAW
Bearer shares versus registered shares
There are no legal restrictions as to the transfer of shares of a company. According to corporate law, the articles of association of a company may provide for certain restrictions.
Regarding registered shares, a share transfer deed has to be entered into between the transferor and transferee. In addition, for a duly transfer of the shares either this deed should be served on the company or the transfer of shares should be acknowledged by the company. The latter can easily be done by the company by co-signing the transfer deed for acknowledgement. The directors of …
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PRODUCT LIABILITY UNDER THE LAWS OF ARUBA AND THE NETHERLANDS ANTILLES
Product liability can be based on tort or breach of contract
Product liability is about the liability of manufacturers of any product for damage caused by that product. A product is defective if it does not provide the level of safety that the community generally is entitled to expect. Product liability can be based on a contract between the manufacturer of the product and its counterparty (breach of contract) or on the provisions of the Civil Code of the Netherlands Antilles or Aruba that deal with the concept of tort.
Any unlawful act (tort) that inflicts damage upon another obliges …
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LAWYER’S LETTERS IN THE NETHERLANDS ANTILLES
A lawyer’s letter is for the purpose of reviewing management’s evaluations regarding claims
The management board of a Netherlands Antilles company has a duty to account to the shareholders’ meeting, which is embodied in the duty to draw up and submit the annual accounts and annual reports to the shareholders’ meeting. The general meeting (or another corporate body so designated by the company’s articles of association) may appoint an external accountant to regularly supervise the bookkeeping and to report to this meeting on the annual accounts.
One of the items the (chartered) accountant has to look into are unasserted claims …
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FORCED BUY-OUT OF MINORITY SHAREHOLDERS UNDER NETHERLANDS ANTILLES LAW
Squeeze out measures can rather easily be enforced
A shareholder who owns ninety five percent or more of the issued capital of a Netherlands Antilles company may initiate legal proceedings to require all of the other shareholders to transfer their shares to them (‘uitkoopregeling’). The articles of association may provide for a lower percentage, provided it is not less than ninety percent. The mere fact that the majority shareholder meets this requirement is sufficient for initiating forced buy-out proceedings. No further explanation is needed as far as this buy-out is concerned. The minority can be bought out against its will.
WHAT TO DO WITH UNDISTRIBUTED PROFITS OF A NETHERLANDS ANTILLES COMPANY?
Tax issues should be addressed
Suppose your company has formed a non-distributed profit reserve. You may choose to distribute it as regular dividend. Alternatively, your company could issue new, so-called ‘bonus’, shares to you, which would as it were be paid-up from the non-distributed reserve. Such conversion might qualify as a (deemed) distribution of dividend, as the reserve may be deemed to be paid out to you (the shareholder), which would in turn be deemed to pay up the shares.
Another possibility is ‘conversion’ of the reserve into share premium. This possibility provides for the distribution of the existing ‘non-distributed …
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BANK SECRECY IN THE NETHERLANDS ANTILLES AND ARUBA
There is a duty of confidentiality on banks not to disclose customer information
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.
In the Netherlands Antilles and Aruba there are no separate explicit statutory regulation concerning bank secrecy. However, the Netherlands Antilles and the Aruba Civil Code imply a duty of confidentiality into all contracts between a bank and its customers. In …
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