PRIVATIZATION IN THE NETHERLANDS ANTILLES
Streamlining government is in the general interest
On 6 September 2005, Japan announced that it had completed the 20-year privatization of the nation’s biggest telecommunications company. This is the result of Japans ongoing effort to shrink government. In the past decade, about 50% of privatization activity took place in Latin America and the Caribbean. Privatization is still a hot issue.
Many governments are, directly or indirectly, involved in enterprises like airlines, telecommunication companies, postal services, water and electricity companies and public transport companies. As far as such enterprises are concerned, the role of the government should be supporting rather than …
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THE LIABILITY OF INTERNET SERVICE PROVIDERS IN THE NETHERLANDS ANTILLES
The liability of an ISP is not unlimited
An Internet Service Provider (ISP) is primarily a conduit that passively allows for the transmission of data: an on-line intermediary. One cannot expect an ISP to monitor all of the services that it may give access to: an ISP offers numerous web-based services and the use of countless web pages. No ISP is able to monitor the content of al those pages accurately on a day-to-day basis. On the other hand, an ISP is arguably best placed to block and remove offensive material.
Under the European E-Commerce directive 2002, ISPs risk liability …
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CIVIL LAW NOTARIES IN THE NETHERLANDS ANTILLES AND ARUBA
Civil law notaries are university graduated legal experts
In the United States a notary public is a public servant appointed by state government to witness the signing of important documents (acknowledging and verifying signatures) and administer oaths and affirmations. Such a notary is forbidden from preparing legal documents or acting as a legal adviser unless he is also an attorney.
A Netherlands Antilles or Aruban civil law notary (‘notaris’) is a different kind of notary. All civil law notaries are law graduates: they are officials with considerable legal skills and training. A civil law notary may prepare legal documents (deeds, …
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REPORTING OBLIGATIONS UNDER NETHERLANDS ANTILLES LAW
Reporting obligations which apply to publicly traded securities
The Disclosure of major holdings in listed companies act (the ‘Act’) requires the owners of shares in corporations which (a) are incorporated in accordance with Netherlands Antilles law, and (b) are listed or traded on certain specified stock exchanges to report exceeding or reaching certain threshold holdings.
The threshold values are 5, 10, 20, 33 1/3, 50 and 66 2/3% of the total voting rights in respect of shares issued by the company. The pertinent stock exchanges are specified in a separate decree: these are the Amsterdam, Frankfurt, London, New York, Paris …
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ELECTRONIC TRANSACTIONS IN THE NETHERLANDS ANTILLES
A digital signature has the same legal effect as a hand-written signature
The Ordinance on agreements to be concluded electronically (‘Landsverordening overeenkomsten langs elektronische weg’) became effective on 1 January 2001.
Trade, financial services and other commercial activities are taking place by electronic means in a quickly growing pace. The Netherlands Antilles was ahead of many countries in developing legislation in this respect.
The Ordinance provides that an electronic signature shall have the same legal effect as a hand-written signature, and may be admitted as evidence in legal proceedings. An electronic signature is described as electronic data which are attached …
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BANKING REGULATIONS IN THE NETHERLANDS ANTILLES
Attracting funds from the public is prohibited
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 having its seat at Curacao. The tasks of the Bank include, inter alia, circulating coins and bank notes, enhancing stability of the value of Netherlands Antilles currency, acting as central currency bank, regulating cross-border payment transactions and acting as supervisory body in the Netherlands Antilles (prudential supervision).
The Netherlands Antilles Ordinance on the Supervision of Banks and Credit Institutions 1994 (‘Landsverordening Toezicht Bank- en Kredietwezen 1994′) …
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ARUBA AND THE NETHERLANDS ANTILLES ARE NOT MEMBERS OF THE EUROPEAN UNION
Should their OCT status change to OMR?
The Netherlands Antilles and Aruba are subject to the special European Union arrangement regarding the Association of the Overseas Countries and Territories (OCT status). In its coalition agreement of the summer of 2003 the Dutch government has committed itself to make an effort to acknowledge the Netherlands Antilles and Aruba as Outermost Region (OMR status) in the meaning of the EU Treaty. There is a debate going on about the future status of the Netherlands Antilles and Aruba.
At present the Netherlands Antilles and Aruba, being both separate countries in the Caribbean sea …
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FILING FOR BANKRUPTCY IN THE NETHERLANDS ANTILLES
The ultimate recourse against a company not paying its debts
The application for a bankruptcy order can be made either by the debtor itself or by one or more of its creditors.
If the debtor is a company, according to article 8 par. 4 of the Code on corporate law and other legal persons, the managing directors do not have the authority to file a petition for bankruptcy of the company without authorization thereto from the general meeting, unless otherwise stipulated in the articles of association.
The pre-requisites for the making of an order on the application for bankruptcy, regardless …
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U.S. JUDGMENTS AND THE NETHERLANDS ANTILLES
The recognition and enforceability of foreign judgments in the absence of a treaty
In the absence of an applicable treaty between a foreign country (for example the U.S.) and the Netherlands Antilles, a judgment rendered by a U.S. court, will not be enforced by the Netherlands Antilles courts. In order to obtain a judgment which is enforceable in the Netherlands Antilles the claim must be re-litigated before a competent Netherlands Antilles court.
Nevertheless, a judgment rendered by a U.S. Court will, under current practice, be recognized by a Netherlands Antilles court
a. if the U.S. Court has assumed jurisdiction on …
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CROSS-BORDER LEGAL MERGERS IN EUROPE
Freedom of such mergers confirmed
According to a press release of the European Commission the general refusal in Germany to register a legal merger between companies in the commercial register where one is established in another member state is contrary to community law.
This difference in treatment between companies, according to whether the merger is internal or cross-border in nature, constitutes a restriction on freedom of establishment that cannot be justified on imperative grounds in the public interest.
A merger contract concluded in 2002 between SEVIC Systems AG, established in Germany, and Security Vision Concept SA, established in Luxembourg, provided …
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TRUST SERVICE PROVIDERS IN THE NETHERLANDS ANTILLES
Trust service providers are supervised by the Central Bank
On 23 December 2003, the National Ordinance on the Supervision of Trust Service Providers 2003 (Landsverordening toezicht trustwezen) entered into force, which would place most trust offices and corporate services providers under direct supervision of the Central Bank. By virtue of this Ordinance, the National Ordinance on the Supervision of Fiduciary Business (Landsverordening toezicht fiduciair bedrijf) has been withdrawn.
The Ordinance introduces a prohibition for the rendering of trust services (beheersdiensten) in or from the Netherlands Antilles. Trust services are defined as (i) to incorporate, or to have incorporated, an international …
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THE LOCATION OF SHARES UNDER NETHERLANDS ANTILLES LAW
Where are the shares and where can they be seized?
The Netherlands Antilles has a broad range of possibilities for creditors to get security for an alleged claim, even before judgement. Suppose you want to collect a claim and you are considering putting certain or all of your counterparty’s assets under arrest (freezing/seizing assets or conservatory attachment) to secure payment. If among those assets are shares in a company, the question arises in which country you should ask permission for an arrest.
Under Netherlands Antilles international private law, the general rule is that the ‘lex rei sitae’ determines who holds …
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