DUTCH CARIBBEAN HEDGE FUNDS
Curacao provides a favorable climate for hedge funds
Curacao, part of the Netherlands Antilles, currently provides a favorable tax, legal and regulatory climate for hedge funds. A fund vehicle can be established quickly and flexibly. Additionally, the current regulatory regime for the supervision of investment institutions and administrators and the anti-money laundering rules provide comfort for investors. In Curacao one can discuss with the tax authorities in advance what at arms’ length remuneration will be acceptable. A tax-exempt vehicle and several very low-tax vehicles are available for hedge funds.
There is no requirement from the point of view of corporate …
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DUTCH CARIBBEAN BUSINESS LICENSES
Citizens versus non-citizens
According to the Netherlands Antilles Ordinance on the Establishment of Businesses (‘Landsverordening betreffende vestiging van ondernemingen’, PB 1946 nr. 43) a license is required to establish a company (‘vestigingsvergunning’). A further license is required to operate one as an individual director if one is not a citizen of the Netherlands Antilles (‘directievergunning’).
According to a policy document published by the Department of Economic Affairs (‘Dienst Economische Zaken’) in Curacao that is responsible for the enforcement of aforementioned Ordinance, a person is considered a citizen of the Netherlands Antilles if born in the Netherlands Antilles, …
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DUTCH CARIBBEAN ANTI-MONEY-LAUNDERING REGULATIONS (II)
Filing MOT report no blanket protection
A provider of financial services, e.g. a bank, has the obligation under Section 11 of the MOT (National Ordinance Penalization Money Laundering) to report to the Financial Intelligence Unit (FIU), without delay, any unusual transaction made or proposed. Unusual transactions are described in the Ministerial Decree Indicators Unusual Transactions.
Suspected money-laundering transactions are, e.g., transactions non-typical of a client or transactions where there is otherwise cause to presume that they may relate to money laundering or terrorist financing. Such transactions, including proposed transactions, should be reported. The MOT also allows for permissive filings by …
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DUTCH CARIBBEAN ANTI-MONEY-LAUNDERING REGULATIONS (I)
An overview
Important Netherlands Antilles anti-money-laundering regulations include the National Ordinance Penalization Money Laundering (‘Landsverordening Strafbaarstelling Witwassen van Geld’, ‘NOML’) which criminalizes money laundering, and the National Ordinance on the Reporting of Unusual Transactions (‘Landsverordening Melding Ongebruikelijke Transacties’, ‘MOT’). The latter requires anybody who offers financial services to report, without delay, any ‘unusual transactions’ to the Financial Intelligence Unit (‘Meldpunt Ongebruikelijke Transacties’).
Non-legislative regulations, such as the Provisions and Guidelines on the Detection and Deterrence of Money Laundering and Terrorist Financing for Credit Institutions (‘Guidelines’), issued by the Central Bank of the Netherlands Antilles are also relevant. These state that …
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ORDINARY VERSUS SUMMARY PROCEEDINGS IN THE DUTCH CARIBBEAN
Interlocutory or summary proceedings provide for immediate relief
Article 110 of the Netherlands Antilles and Aruba Code of Civil Procedure (‘the Code’) provides that all adversarial proceedings shall be initiated by means of a petition to the court of first instance. Proceedings so initiated are ordinary proceedings a.k.a. proceedings on the merits.
A petitioner may opt for preliminary relief proceedings (a.k.a. interlocutory proceedings; ‘kort geding’). Article 226 of the Code provides that in urgent cases which require an immediate decision, the plaintiff may request a provisionally enforceable judgement (‘beslissing bij voorraad’).
Article 229 of the Code provides that a provisional …
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THE SUPREME COURT OF THE KINGDOM OF THE NETHERLANDS IN CIVIL PROCEEDINGS
It serves the whole Kingdom
The Kingdom of the Netherlands is comprised of three separate jurisdictions, the Netherlands (i.e.: the part of the Kingdom located in North Western Europe), the Netherlands Antilles and Aruba. The Netherlands Antilles and Aruba have their own code of civil procedure, which in certain respects is similar, but not identical to the Dutch Code of Civil Procedure. The Supreme Court of the Netherlands also serves as the Supreme Court of the Netherlands Antilles and Aruba.
The Netherlands Antilles and Aruba have courts in the first instance (‘Gerecht in Eerste Aanleg’) and a joint court of …
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STANDARDS OF DUE PROCESS IN THE NETHERLANDS ANTILLES AND ARUBA
The Supreme Court applies strict standards
The European Convention for the Protection of Human Rights and Fundamental Freedoms (‘EVRM’), including Article 6, which safeguards the right of due process, applies to the standards of due process applicable in the Netherlands Antilles and Aruba.
Article 6, first sentence, EVRM, reads as follows: “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”. The requirement of a ‘fair hearing’ has been consistently interpreted by …
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RESOLUTION OF PROBLEMS IN OR OUTSIDE THE COURT?
Arbitration
A party can initiate legal proceedings in a court of law to solve a legal dispute. Alternatively, the parties may opt to appoint one or more persons (arbitrators) to decide on the dispute and by whose decision they both agree to be bound.
Why would one opt for binding dispute resolution (arbitration) over regular litigation? There are several reasons to do so:
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CORPORATE CONFLICTS OF INTERESTS UNDER THE LAWS OF THE DUTCH CARIBBEAN
A particular provision may help to prevent disputes
The board of directors has the function of managing, i.e., making policy and conducting the day-to-day management of the corporation. Except for restrictions in the articles of association, the board of directors is responsible for the management of the BV or NV (private or public limited liability company) and is authorized to represent it.
A conflict of interests is not in itself improper. The manner in which one deals with it determines the propriety of a transaction or one’s conduct. According to Article 2:11 par. 3 of the Netherlands Antilles Civil Code, …
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INSIDER TRADING IN THE DUTCH CARIBBEAN
A criminal offense
The Netherlands Antilles Ordinance on the Supervision of Stock Exchanges 1998 (‘Landsverordening toezicht effectenbeurzen 1988’) contains a prohibition on insider trading.
Any person who is in possession of inside information is prohibited from carrying out a transaction or being instrumental in a transaction in securities in a company listed on a Netherlands Antilles stock exchange or on any other foreign recognized stock exchange, or in any securities whose value is determined by such securities.
In general it is prohibited for anyone, including an issuer, once it is reasonable to assume that securities will be listed, to enter …
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