TRANSACTIONAL POWER OF THE MANAGING BOARD OF A DUTCH CARIBBEAN CORPORATION (II)
Only corporations may plead absence of representative authority
Under the Netherlands Antilles Corporate Code, i.e. Book 2 of the Civil Code, transactions with third parties that violate either the law or any limitations on the transactional powers of the board of directors of a corporation, are not enforceable against the corporation if the limitations are properly disclosed at the trade register. According to Article 2:10(3) Netherlands Antilles Civil Code only corporations may plead the absence of representative authority.
A counterparty wishing to withdraw from a legal act on that ground, may only rely on the fourth paragraph of Article 2:10 …
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TRANSACTIONAL POWER OF THE MANAGING BOARD OF A DUTCH CARIBBEAN CORPORATION (I)
Limitations must be disclosed to have effect
Netherlands Antilles law provides that, subject to restrictions laid down by the Netherlands Antilles Corporate Code or a corporation’s articles of association, the board of directors of a corporation shall be competent to represent the corporation, e.g. a limited liability company (‘naamloze of besloten vennootschap’; NV or BV). In the event of several managing directors, any managing director shall be competent, insofar as not otherwise provided for by the articles of association.
Under Netherlands Antilles law, information required to be disclosed pursuant to the Civil Code, for instance (i) the identities of the …
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STATUTORY LIMITATIONS FOR FILING A CLAIM UNDER ARUBAN LAW
Five year period
With respect to the limitations under Aruban law for filing a claim, the pertinent legal provisions governing limitations are set out in Book 3, Title 11 (Rights of Action) of the Aruban Civil Code.
According to Article 310 the right of action for compensation for damage is prescribed up to the end of a five year period from the beginning of the day following the one on which the person who is prejudiced becomes aware of both the damage and the identity of the person responsible for it.
If an accident occurred on August 1, 2004, for …
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SPOTLIGHT ON CURACAO
Curacao economic country survey inserted in the New York Post
In May 2009, United International Press (UIP) issued a special bulletin on Curacao, the Netherlands Antilles, in an insert in the New York Post. UIP has also placed the bulletin on its website. Curacao is described as a Caribbean Hub with Investment Appeal. Amongst various government institutions and businesses, Spigthoff Attorneys & Tax Advisers is also mentioned (click here).
According to its website,
“United International Press is a media agency specialized in the production of comprehensive economic country surveys inserted in the New York Post. …
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WHAT DAMAGES ARE RECOVERABLE UNDER ARUBAN LAW? (II)
Case law
The Supreme Court in its case law has held that relatives of a deceased person are only entitled to sue for damages against the person liable for his or her death, if and to the extent that their death has left them in need. The extent of need is measured by the standard of living of the surviving relatives during the life of the deceased. See, for example, Supreme Court dated December 13, 1985 and Supreme Court dated February 28, 1986. This rule may be considered one of the fundamental principles and values of the Aruban legal system, …
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WHAT DAMAGES ARE RECOVERABLE UNDER ARUBAN LAW? (I)
Nature and extent determined by the Civil Code
When considering the nature and extent of damages that are recoverable under Aruban law, the point of departure is Book 6, Title 1 (Obligations in General), Section 10 (Legal Obligations to Make Reparation of Damage), Article 95 of the Aruban Civil Code which states: ‘the damage which must be repaired pursuant to a legal obligation to make reparation consists of material damage and other harm (i.e., immaterial damage), the latter to the extent that the law grants a right to reparation thereof’.
Pursuant to Article 96, Paragraph 1, material damage comprises both …
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TRADE MARK LAW: PLACING LUXURY GOODS IN DISCOUNT STORES CAN AFFECT THEIR QUALITY
French fashion house Dior has the upper hand in legal battle over ‘dumping’ of its goods
Placing luxury goods like Christian Dior products in discount stores can affect their quality according to the European Court of Justice, in a ruling on April 23, 2009, thereby backing the renowned French fashion house Dior in a trademark case. At issue is the extent to which companies such as Dior can defend themselves against products bearing their brands being “dumped” even though the licensing agreement clearly prohibits the licensee from doing so.
On May 17, 2000 the fashion house concluded a …
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MANAGEMENT AND SUPERVISION OF THE ARUBA COMPANY WITH LIMITED LIABILITY
A local representative is required
On January 1, 2009 the new Aruba Ordinance on companies with limited liability (vennootschap met beperkte aansprakelijkheid; VBA) became effective.
The Board of Directors is responsible for the management of the VBA and is authorized to represent it, with the exception of any restrictions in the articles of association. The Board may consist of natural persons and/or legal entities. A VBA must have as local representative, an Aruban corporation (NV or AVV). The bylaws and business license explicitly provide for the representation of companies, unless the VBA either has one or more directors with their …
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CAPITAL STRUCTURE OF THE ARUBA COMPANY WITH LIMITED LIABILITY
Full value share is required
On January 1, 2009 the new Aruba Ordinance on companies with limited liability (vennootschap met beperkte aansprakelijkheid; VBA) became effective.
Concepts like registered, subscribed and contributed capital do not appear in the Ordinance. No minimum capital is therefore required, unless such a requirement is included in the articles of association. There may be voting shares, non-voting shares and shares with restricted voting rights. Shares may have a par value. If shares have a par value, this may differ per category of shares. The par value may also be expressed in one or more foreign currencies.
FRANCHISE AGREEMENTS UNDER THE LAWS OF ARUBA (II)
Case law regarding termination
It can be concluded from a Netherlands Antilles case regarding failed negotiations for the continuation of a license agreement (franchising) (Antillean Family Foods NV vs Mc Donald’s Corporation, Supreme Court, February 26, 1993, NJ 1993, 289), that under certain circumstances the termination of an agreement may constitute an obligation (to negotiate a renewal of contract or) to pay damages / compensation.
Possible areas of relevance are: the contents of the agreement and the circumstances under which the agreement was entered into; the amount invested by the franchisee and the extent to which the investment was recouped; …
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FRANCHISE AGREEMENTS UNDER THE LAWS OF ARUBA (I)
What are called ‘franchises’ are not seldom mixed type agreements
Franchise agreements are not defined in any Aruban statute and are not subject to any specific Aruban legislation. The franchise agreement is a sui generis agreement, subject to the general law of contracts. Distribution agreements are not subject to any specific Aruban legislation either, and are, as with franchise agreements, also subject to the general law of contracts.
In accordance with the general law of contracts, parties are free, in principle, to agree on whatever they wish. However, certain restrictions are imposed by the general principle of Aruban law that …
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GROUP RESTRUCTURING AND REFINANCING
Plan and act prudently: better to be safe than sorry
Especially in these times of global economic and financial turmoil, a group (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 …
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