CORPORATE GOVERNANCE AND STATE-OWNED ENTERPRISES

Speech Karel Frielink – Conference of the Caribbean Ombudsman Association

Ladies and Gentlemen!

I have only half an hour, so I won’t travel back in time to the early days of mankind. I just start with Plato (427 – 347 B.C.E.). You may have heard of this philosopher. And of ‘Platonic love ’ of course. Plato himself mistrusted and generally advised against physical expressions of love.

Ladies and gentleman, we are real people. Human beings of flesh and blood. We are no zombies! So I imagine that Plato would have advised people like you and me: “govern yourself, put restrictions …
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19
Oct 2015
CATEGORY

Corporate

COMMENTS No Comments

THE DIFFICULTY OF ENFORCING JUDGMENTS

Michael Redman on the challenges of enforcing judgments

Michael Redman of Burford Capital has written an interesting article on the challenges of enforcing judgments, which was published in the October 2015 issue of Litigation Funding (click here).

As far as the Dutch Caribbean (Aruba, Bonaire, Curaçao, St. Maarten, St. Eustatius and Saba) is concerned, the enforcement of a judgment rendered by for instance an English court will be subject to the provisions of the Convention between the Kingdom of the Netherlands and the United Kingdom and Northern Ireland regarding Mutual Recognition and Enforcement of Judgments in …
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13
Oct 2015
CATEGORY

Legal

COMMENTS No Comments

ATTACHMENTS UNDER THE LAWS OF CURACAO (part II)

Defendant has to show that the claim is invalid

Article 705, Paragraph 2 of the Curaçao Code of Civil Procedure states that the lifting of an attachment may be ordered if it appears summarily that the claim is invalid.

According to existing case law of the Dutch Supreme Court (see for instance Supreme Court dd June 14, 1996, NJ (Dutch Law Reports) 1997, 481), this means that the plaintiff (i.e. the party requesting the attachment be lifted in summary proceedings), with due regard for the limitations of summary proceedings, should establish a prima facie case (aannemelijk maken) that the alleged …
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07
Oct 2015
CATEGORY

Legal

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ATTACHMENTS UNDER THE LAWS OF CURACAO (part I)

Freezing assets is rather easy

Under Curaçao law any party with a prima facie claim may file a petition for a court order granting an attachment, which petitions are generally granted, solely based on the allegations in the petition. It is not required, under Curaçao law, that the litigant needs to demonstrate that, in absence of an attachment, there is a risk that the defendant would have insufficient assets to pay a judgment, as a threat of evading a judgment (by moving assets etc.) does exist.

Only with respect to some types of assets, such as registered shares and other …
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29
Sep 2015
CATEGORY

Legal

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RESTRUCTURING, REFINANCING AND CREDITOR PROTECTION

Diligence is required

Especially in these times of global economic and financial turmoil, an international group of companies (or part thereof) might want to consider restructuring and refinancing its operations or may be already in the process of doing so. When considering or carrying out such plans, careful thought must be given to potential (legal) risks involved. For instance, in many jurisdictions specific statutory provisions exist regarding fraudulent preference actions, i.e. actions that prejudice (specific) creditors. Such provisions often also apply in full with respect to (individual companies belonging to) a group of companies, and should not be overlooked in …
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22
Sep 2015
CATEGORY

Finance

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OPPORTUNITIES TO MEET ME

Amsterdam, The Hague & Vienna

I am going to attend the following conferences:

  • Consular Conference – The Hague, 22 September 2015
  • InterExpo / 20th Trade Mission – Amstel Hotel Amsterdam, 23 – 25 September 2015
  • International Chamber of Commerce (ICC), FraudNet Conference – Vienna, Austria, 1 – 3 October 2015
  • IBA (International Bar Association) International Conference – Vienna, Austria, 4 – 7 October 2015
  • I hope to meet many colleagues and others from all over the world.

    Karel Frielink (Attorney/Lawyer, Partner)

    (17 September 2015)

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    17
    Sep 2015
    CATEGORY

    Legal

    COMMENTS No Comments

    FRAUD (part II)

    Legal forms of fraud

    The person who forges a diploma, agreement or identity document is guilty of a criminal offence. Although the concept of ‘fraud’ is only mentioned in relation to human trade in the Criminal Code of Curaçao, there are various offences which can have a relationship with fraud in the sense meant herein: forgery, embezzlement, swindle, (fraudulent) bankruptcy and bribery.

    In civil-law relationships the doctrines such as breach of contract, wrongful act, misleading advertisement, error and deception come to mind. In addition, there are lots of other Acts with special provisions such as tax law. I will pass …
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    12
    Sep 2015
    CATEGORY

    Legal

    COMMENTS No Comments

    FRAUD (part I)

    Curaçao

    Fraud is an everyday occurrence. It is of all times, and a phenomenon that happens in every country. In discussions about fraud (and corruption) in Curaçao you regularly see that people refer to other countries, in particular to the Netherlands, to downplay this phenomenon here somewhat. The small number of criminal prosecutions and convictions are often mentioned. In this connection it is often said that they are of ‘a political nature’. Sometimes it is even alleged that someone’s integrity can only be discussed when there is a criminal conviction. We can delude ourselves a lot!

    In the event of …
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    08
    Sep 2015
    CATEGORY

    Legal

    COMMENTS No Comments

    NO DERIVATIVE ACTION IN CURACAO

    A claim based on tort is possible though

    Curaçao corporate law does not provide for any derivative suit mechanism (and neither do the laws of Aruba, St. Maarten and the BES-islands). This matter was first decided in the cases of Poot v. ABP, Hoge Raad (Dutch Supreme Court) 2 December 1994, NJ 1995, 288, and Constance et al. v. Noro et al., Gemeenschappelijk Hof van Justitie van de Nederlandse Antillen en Aruba (Joint Court of Appeal of the Netherlands Antilles and Aruba) 13 December 1994, SJD 1994, 498.

    However, a shareholder suffering derivative damage may commence proceedings against, for instance, …
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    02
    Sep 2015
    CATEGORY

    Corporate

    COMMENTS No Comments

    FRAUDNET – THE POWER OF ONE GLOBAL NETWORK

    FraudNet in action

    According to The Irish Times, lawyer Antenor Pereira Madruga Filho (a member of FraudNet) is hired by the Irish Government to represent it in a high-profile case involving a lawyer who fled Ireland in 2007 with debts of €80m. The lawyer was arrested in Brazil almost two years ago and has been held since in a prison (click here for the newspaper article). FraudNet Members are regularly in the news and you can read about some of them here.

    FraudNet is a worldwide network of lawyers specialized in asset tracing and …
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    25
    Aug 2015
    CATEGORY

    Legal

    COMMENTS No Comments

    PRE-TRIAL MOTIONS IN CURACAO

    Differences with the United States

    Curaçao civil proceedings differ substantially from those in the United States. In Curaçao there are, for instance, no juries. In principle, legal proceedings are basically conducted in writing. Oral pleadings are customary in preliminary relief proceedings, but optional in proceedings on the merits. Discovery proceedings like those in the United States do not exist. Pre-trial motions similar to those in the United States do not exist in Curaçao either. There are, however, so-called incidents or ancillary proceedings in Curaçao.

    An ancillary proceeding may be a separate procedural step or an ancillary step within the framework …
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    18
    Aug 2015
    CATEGORY

    Legal

    COMMENTS No Comments

    DUTIES OF A MANAGING DIRECTOR OF A DUTCH CARIBBEAN NV OR BV

    Acting in the best interests of the company

    Although not explicitly provided for in Book 2 of the Civil Codes of Curacao, St. Maarten and the BES-islands (Bonaire, St. Eustatius and Saba) (“CC”), it is considered a general rule of corporate law that the management board (a.k.a. board of directors) must act in the best interests of the company (an NV or BV) in the performance of its duties, even when acting on instructions from others (e.g. shareholders). This includes the interests of the shareholders, the employees and, according to most legal writers, the creditors of the company.

    The management …
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    10
    Aug 2015
    CATEGORY

    Corporate

    COMMENTS No Comments