LIABILITY FOR NOT OR LATE FILING FOR BANKRUPTCY IN THE DUTCH CARIBBEAN
No obligation to file for bankruptcy
There is no statutory obligation in the Netherlands Antilles for managing directors of a company to file for the bankruptcy of the company. Managing directors are therefore not responsible to the creditors for damages sustained by them as a result of any ‘late’ filing for bankruptcy. There is no such obligation for shareholders of a company either. A liquidator of a company shall, however, file for bankruptcy if he finds that the liabilities are likely to exceed the assets, unless all known creditors agree in writing that the liquidation be continued on a voluntary …
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MORATORIUM OF PAYMENTS IN THE DUTCH CARIBBEAN (II)
The debtor may make an offer of composition
The nature of a Netherlands Antilles’ moratorium differs substantially from a moratorium under US law and does, in particular, not cause pending proceedings to be stayed. Generally, a moratorium in the Netherlands Antilles protects a debtor from claims existing at the time of the moratorium. It does not prevent litigating such claims, but judgments obtained cannot be enforced.
During a moratorium, the creditor is prevented from enforcing ordinary agreements against the party to which the moratorium is granted. Instead, creditors may file their claims with the administrator in the moratorium. If the performance of the …
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DUTCH CARIBBEAN COMPANIES AND LIABILITY ISSUES
Shareholders are not personally liable
Shareholders of an NV or BV are not personally liable for the liabilities of the company, except where this would be contrary to the law. With the exception of actions based on tort or when a shareholder may be held liable because he is considered a policy maker (see below), in general, the shareholders only obligation is to pay to the company the consideration for the share issue, i.e. a payment on the shares.
The members of the board of directors are personally and severally liable towards the company for any loss caused by the …
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FILING FOR BANKRUPTCY IN THE DUTCH CARIBBEAN
The ultimate recourse against a person not paying his debts
The bankruptcy order can be applied for either by the debtor or by one or more of its creditors. If the debtor is a company then, pursuant to Article 2:8 par. 4 of the Civil Code, the managing directors do not have the authority to file a petition for bankruptcy of the company without prior authorization thereto from the general meeting, unless otherwise stipulated in the articles of association.
The pre-requisites for issuing an order upon an application for bankruptcy, regardless of whether the application is submitted by the debtor …
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