CURACAO FUNDS AND ADMINISTRATORS

Statutory requirements applicable to the organizational and legal structure

The National Ordinance on the Supervision of Investment Institutions and Administators (Landsverordening regelende het toezicht op beleggingsinstellingen en administrateurs; NOSIIA) provides for a regime of supervision for investment institutions and administrators with the objective of an adequate operation of the financial markets and the protection of investors in such markets.

With regard to the business operation of a local fund that operates within the scope of the NOSIIA it provides for requirements applicable to the organizational and legal structure as expressed in the fund’s constitutive documents. Such requirements address the conditions …
Read the rest »

05
Oct 2012
CATEGORY

Finance

COMMENTS No Comments

SEMINAR ONDERNEMINGSRECHT

22, 23 en 24 oktober 2012

Het ondernemingsrecht is continu in beweging. Hier bij ons in Curacao, maar ook in Nederland. Boek 2 van het Burgerlijk Wetboek Curacao is op 1 januari 2012 op tal van punten gewijzigd. Wat houden deze wijzigingen precies in? Wat betekent de invoering van de Flex-BV in Nederland per 1 oktober 2012 voor Curacao?

Denk wat Curacao betreft bijvoorbeeld ook aan de invoering van een integrale regeling inzake het enqueterecht per 1 januari 2012. Het is nu mogelijk om het Hof van Justitie een of meer onderzoekers te laten benoemen om onderzoek naar (vermeend) wanbeleid …
Read the rest »

21
Sep 2012
CATEGORY

Corporate

COMMENTS No Comments

INTERNATIONAL CREDIT INSTITUTIONS IN CURACAO

Banking business abroad

Credit institutions (banks) in Curacao are subject to the National Ordinance on the Supervision of Banking and Credit Institutions 1994 (the NOSB). The NOSB makes a distinction between ‘credit institutions’ and ‘international credit institutions’. The NOSB defines a credit institution as an institution that to an important extent makes its business of:

  • the solicitation of repayable funds (“deposits”, whether term deposits or deposits which are repayable on demand, whether or not savings deposits, whether or not against issue of debt instruments); and
  • granting credit for its own account.
  • An ‘international credit institution’ is defined as a credit …
    Read the rest »

    13
    Sep 2012
    CATEGORY

    Legal

    COMMENTS No Comments

    CIVIL PROCEEDINGS IN CURACAO

    Information for foreign plaintiffs

    Are there any particular issues that concern foreign plaintiffs in Curacao? If proceedings on the merits are initiated by a non-resident plaintiff, the defendant may ask the court to order that the plaintiff provide security for damages, costs and interest which it might be liable to pay as a result of the judgment in aforementioned proceedings. This ‘cautio judicatum solvi’ does not apply if there is a Convention (Treaty) on legal proceedings between Curacao and the plaintiff’s country.

    Can attorney costs for legal proceedings be recovered? Generally speaking, each party has to bear its own attorney …
    Read the rest »

    25
    Aug 2012
    CATEGORY

    Legal

    COMMENTS No Comments

    INADEQUATE CAPITALIZATION OF A CURACAO COMPANY

    Liability for thin-capitalization?

    A shareholder is not personally liable for acts performed in the name of the company and is not liable to contribute to losses of the company in excess of the amount which he must pay to the company as contribution for his shares.

    In terms of ‘piercing the corporate veil’, thin or inadequate capitalization usually means capitalization that is not in proportion to the nature of the risks the business of the corporation necessarily entails; in other words it is based on likely economic needs rather than legal requirements. In almost all jurisdictions, undercapitalization as such is …
    Read the rest »

    16
    Aug 2012
    CATEGORY

    Corporate

    COMMENTS No Comments

    GOVERNMENT AND CORPORATE GOVERNANCE (V)

    Government drafted model articles of association

    The first model articles of association date from March 15, 2011.

    For criticism see: K. Frielink, Visie Land op overheids-NV’s verkeerd [Vision Country on government-owned NVs incorrect], Antilliaans Dagblad 15 April 2011, p. 16 and M.L. Alexander, F.B.M. Kunneman, L.G. Santine and R.J. in ’t Veld, Modelstatuten ten sterkste afgeraden [Model articles of association strongly discouraged], Antilliaans Dagblad 20 September 2011, p. 14-15. See also K. Frielink, Stop politieke benoemings- en ontslagcarrousel [Stop politicial appointment and dismissal merry-go-round], Antilliaans Dagblad 14 September 2010, p. 14-15.

    In the meantime, the models for …
    Read the rest »

    21
    Jun 2012
    CATEGORY

    Corporate

    COMMENTS No Comments

    GOVERNMENT AND CORPORATE GOVERNANCE (IV)

    Code Corporate Governance Curacao

    On January 1, 2010, the National Ordinance regarding corporate governance came into effect. Based on this the Code Corporate Governance Curacao came into being, that also came into effect on January 1, 2010. In it, reference is still made to the Executive Council and the island territory of Curacao, but as from October 10, 2010 these are understood to mean the government of Curacao and the Country Curacao.

    The National Ordinance does not only undertake to establish a corporate governance code, but also to implement the Code in the government-owned companies. In 2011, this implementation obligation …
    Read the rest »

    14
    Jun 2012
    CATEGORY

    Corporate

    COMMENTS No Comments

    GOVERNMENT AND CORPORATE GOVERNANCE (III)

    The government is not automatically an ‘ordinary’ shareholder

    It is obvious that in a small community such as that of Curacao, with only a limited choice when it comes to directors and supervisory directors to be appointed, and in which (family, social) networks seem to play an important role in making choices, there is a field of tension. It is even more important therefore that government has a clear vision regarding its shareholdership and that there are good and transparent procedures, e.g. regarding the appointment of directors and supervisory directors.

    Does the obligation exist for the government to, briefly stated, …
    Read the rest »

    07
    Jun 2012
    CATEGORY

    Corporate

    COMMENTS No Comments

    GOVERNMENT AND CORPORATE GOVERNANCE (II)

    Government (not) at a distance?

    Being a director of a government-owned company is certainly not always as easy. Neither is being a shareholder in a government-owned company. The directors will usually complain about too much influence from politicians, while the politicians will usually find that they have too little grip on government-owned companies. In this connection, there are two important topics we will have to consider briefly.

    I will ignore cultural aspects here. In that respect see e.g. chapter 8 of the dissertation of A. van Marrewijk, Internationalisation, cooperation and ethnicity in the telecom sector, Delft: Uitgeverij Eburon 1999, 340 …
    Read the rest »

    31
    May 2012
    CATEGORY

    Corporate

    COMMENTS No Comments

    GOVERNMENT AND CORPORATE GOVERNANCE (I)

    For Hobbes, it is certain that there must be a sovereign

    According to Thomas Hobbes we all have natural passions that carry us to, among other things, partiality, pride, and revenge. The laws of nature, as Hobbes sees them, including ‘justice’, ‘equity’, ‘modesty’, and ‘mercy’, are contrary to our passions. Therefore, we will only observe the laws of nature if we have fear of some power to cause them to be observed. According to him, covenants, without the sword, are but words that lack every strength to protect a person.

    See Thomas Hobbes, Leviathan, Amsterdam: Boom 2007, p. 207 and …
    Read the rest »

    24
    May 2012
    CATEGORY

    Corporate

    COMMENTS No Comments

    CURACAO COURT INTERVENES IN POLITICAL APPOINTMENT

    Political appointments unacceptable

    The Court of First Instance of Curacao passed judgment on 23 January 2012 in the case of Selikor N.V. versus Drs. Ivar Asjes (JOR 2012, 105). This case is a follow-up to the judgment of the Joint Court of Appeal of the Netherlands Antilles and Aruba of 10 August 2010, JOR 2010, 296. In a nutshell the case boils down to Asjes being appointed as the managing director of waste processor Selikor N.V., but that this is an appointment pushed through politically without an open job application procedure. This deprived at least six of Selikor’s members of …
    Read the rest »

    12
    May 2012
    CATEGORY

    Corporate

    COMMENTS No Comments

    INQUIRY PROCEDURE IN CURACAO

    Important court decision for the local trust practice

    On 30 March 2012 the first petition for an inquiry procedure under the new law was dealt with by the Joint Court of Justice of Aruba, Curacao and St. Maarten, and of Bonaire, St. Eustatius and Saba. Karel Frielink and Dinesh Mishre had the honor of acting as lawyers for the defense … and with success! This decision is very important for the companies in Curacao and especially for the local trust offices.

    As of 1 January 2012 the amended Corporate Code (Book 2 Civil Code) of Curacao entered into force. The …
    Read the rest »

    02
    May 2012
    CATEGORY

    Corporate

    COMMENTS No Comments