GRANTING DISCHARGE TO MANAGING DIRECTORS

Discharge is not bankruptcy proof

The Civil Codes of Curaçao, Sint Maarten and Bonaire do not contain provisions specifically dealing with discharging managing directors from liability. Neither is there conclusive Dutch Caribbean case law available yet.

Managing directors of a limited liability company (NV or BV) can be discharged from their liability towards the company. Managers can be discharged of liability by an express shareholders’ resolution, however the articles of many companies contain a provision stating that approval of the annual accounts by the shareholders’ meeting discharges the managing director from his/her liability towards the company with regards to the …
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21
Jun 2011
CATEGORY

Corporate

COMMENTS No Comments

STATE-OWNED ENTERPRISES LACK OF INDEPENDENT SUPERVISION

Independent supervision should be mandatory for government-owned entities

It has been my opinion for many years already that government-owned companies should be kept out of the political sphere as much as possible, so that they may benefit from a commercial, businesslike and market-oriented management. In doing so they also run less of a risk of being milked or used as political toys.

Recently, I commented on the model articles of association (statuten) drawn up for government companies by order of the country Curacao. They grant the shareholders meeting (i.e. the government) and the board of supervisory directors of the companies in …
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13
Jun 2011
CATEGORY

Corporate

COMMENTS No Comments

TRUST SERVICE PROVIDERS IN CURACAO

TSPs are supervised by the Central Bank

Many international group structures include one or more Curacao legal entities or partnerships. The main reasons for this are the internationally competitive conditions for business development in the area of corporate law and the tax system in Curacao, as well as the well-developed professional financial services industry. Trust Service Providers (“TSPs”) are involved in setting up and maintaining such structures. TSPs conduct the management of legal entities and partnerships (“client companies”) on behalf of other enterprises. Management usually involves the TSP acting as manager of the client company and providing a correspondence address …
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21
May 2011
CATEGORY

Legal

COMMENTS No Comments

BANKING REGULATIONS IN THE DUTCH CARIBBEAN

Soliciting funds requires a license

The Netherlands Antilles was dissolved on October 10, 2010. Prior to that date the Netherlands Antilles consisted of Curacao, St. Maarten, Bonaire, St. Eustatius, and Saba, and formed, together with the Netherlands and Aruba, the Kingdom of the Netherlands. Curacao and St. Maarten have become independent countries within the Kingdom. They stand on equal footing with the Netherlands and with Aruba, each country with its own set of laws. Bonaire, St. Eustatius and Saba (the “BES-islands”), have, as public entities, become part of the Netherlands. The civil, corporate and banking laws of Curacao, St. Maarten …
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10
May 2011
CATEGORY

Legal

COMMENTS No Comments

GOVERNMENT OWNED ENTITIES IN CURACAO

Concerns about additional authorities Ministers

Attorney Karel Frielink is concerned about the additional authorities which cabinet-members have appropriated over government NV’s.

According to Frielink, who is also President of the Bar Association, these extra authorities increase the chance of ‘political influencing, favoritism and other forms of abuse’ within government institutions.

In an opinion paper, published in the Antilliaans Dagblad, Frielink comments on the model articles of association (statuten) recently drawn up for government companies by order of the country Curacao. According to the government’s explanatory notes, the new model articles of association particularly dwell on the exceptional position of government NV’s …
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04
May 2011
CATEGORY

Corporate

COMMENTS No Comments

WHO DETERMINES THE POLICY OF A DUTCH CARIBBEAN COMPANY?

The management board is in charge

The shareholders have the authority to determine the general policy of a Dutch Caribbean NV or BV. The shareholders may give instructions to the management board with respect to the general direction of the financial, social, economic and personnel policies of the corporation.

However, the shareholders cannot give detailed instructions to the management board unless (in the general view of legal practitioners, myself included) the articles of association so permit. Although not explicitly provided for in Book 2 of the Dutch Caribbean Civil Code (CC), it is considered a general rule of corporate law …
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03
May 2011
CATEGORY

Corporate

COMMENTS No Comments

PROPOSED REVIEW CORPORATE CODE ON ULTRA VIRES

The rules with regard to ultra vires are fundamentally changed

Ultra vires means ‘beyond power or authority’. An ultra vires act is one beyond the purpose clause as laid down in the Articles of Association of a legal entity, for instance a foundation or a limited liability company (NV or BV).

Early in 2010, a draft bill was proposed to amend the Corporate Code (Book 2 Civil Code) of Curacao, St. Maarten, Bonaire, St. Eustatius and Saba (which formerly constituted the Netherlands Antilles). Among other things, the provisions with regard to ultra vires acts (transgression of the object) have been …
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16
Feb 2011
CATEGORY

Corporate

COMMENTS No Comments

VOLUNTARY DISCLOSURE AND THE HUNT FOR UNDISCLOSED ACCOUNTS BY US AND DUTCH TAX AUTHORITIES

Propaganda machines up to speed

Publicity efforts by the US and Dutch tax authorities indicate that the hunt for undisclosed accounts in typical offshore jurisdictions is still a hot item. Although Curacao was not mentioned by the US authorities, the Dutch tax authorities announced a new search for undisclosed accounts in Curacao based on information provided by the French tax authorities. The IRS announced a new voluntary disclosure program which mitigates the risk of criminal prosecution in exchange for paying taxes, interest and a standardized penalty. Furthermore, the IRS announced that they will follow ‘new leads’ emanating from voluntary disclosures. …
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02
Feb 2011
CATEGORY

Tax

COMMENTS No Comments

WHAT YOU MAY EXPECT OF YOUR LAWYER

Quality, Clarity, Trust, Value for Money, Passion and Compassion

Whether you live in the UK, the USA or the Dutch Caribbean, almost every lawyer (attorney) or law firm claims to be the best, the leading, etc. Why are they all trying so hard? And does this do the trick for you? Even more importantly, does your lawyer meet your expectations? What may you expect from your lawyer after all? I will only address a number of the relevant issues here.

In many cases and for many clients, the size of a law firm is not of much importance. What is …
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25
Jan 2011
CATEGORY

Various

COMMENTS No Comments

A PUBLIC LIMITED LIABILITY COMPANY AND LEGAL PERSONALITY

Dutch Supreme Court, Decision of 18 January 1901

Suppose you and several of your friends decided to combine your financial resources to start a business. You subsequently agreed on the incorporation of a limited liability company (NV). You also agreed on the amount each of you would put into the NV and the number of shares each of you would receive in return for this capital contribution. You and your friends then visited the civil law notary and a notarial deed incorporating the NV was executed. The NV now exists.

However, although you and your friends paid their respective capital …
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18
Jan 2011
CATEGORY

Corporate

COMMENTS No Comments

REQUESTS FOR INFORMATION BY FOREIGN TAX AUTHORITIES

A request for information needs to contain specific information

The former Netherlands Antilles concluded several tax information exchange agreements (‘TIEA’) during recent years. These TIEAs also apply to the newly formed country Curacao. The Tax Arrangement for the Kingdom (‘TAK‘) is applicable within the Kingdom of the Netherlands, which includes Curacao. Article 37 of the TAK also contains the facilities for the exchange of information within the Kingdom.

Without a TIEA in place or a specific article in a double tax treaty facilitating the exchange of information between the treaty parties, the Curacao tax authorities would be prohibited from effectively exchanging …
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21
Dec 2010
CATEGORY

Tax

COMMENTS No Comments

TODAY A NEW COUNTRY IS BORN: CURACAO

Pueblo di Korsou: Masha Masha Pabien!

People of Curacao: Heartfelt congratulations!

A new journey has started on a route never taken before. Let us all take pride in our heritage and let us embrace our new country and mix the two with love and respect. We should value diversity and show respect for each other’s traditions. Together, we can build a nation, our nation. To do so we will need to build bridges, not divisions.

The task of building a nation with freedom, opportunity and justice for all is a great endeavor that has to include us all. All our …
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10
Oct 2010
CATEGORY

Various

COMMENTS No Comments