THE DISMANTLING OF THE NETHERLANDS ANTILLES

The Country known as the Netherlands Antilles will disappear as of 10-10-10

The country, the Netherlands Antilles, consists of Bonaire, Curacao, St. Maarten, St. Eustatius and Saba, and forms part of the Kingdom of the Netherlands. On 10 October 2010 the Netherlands Antilles will no longer exist. Two new countries will be born on that date: the country Curacao and the country St. Maarten. Both new countries will be part of the Kingdom of the Netherlands; however, they will each have their own government and legislature. The island of Aruba gained similar autonomy in 1986.

The legislation currently in place …
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30
Sep 2010
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Legal

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SUPERVISION OF TRUST COMPANIES IN THE DUTCH CARIBBEAN

Trust companies render management services

The supervision of trust companies is dealt with in the National Ordinance on the Supervision of Trust Service Providers 2003 (‘Landsverordening toezicht trustwezen’, the ‘NOST’). Supervision of trust companies (a.k.a. fiduciary or company service providers) falls in the category integrity supervision and not in the category prudential supervision. The supervisor is the Central Bank of the Netherlands Antilles. The ordinance prohibits anyone from rendering fiduciary or trust services without a license.

According to Art. 10 of the NOST, trust services means: (a) establishing an international company or causing it to be established when such is …
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01
May 2010
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Legal

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NETHERLANDS CARIBBEAN BANKS AND REGULATORY ISSUES

A bank has less freedom than an ordinary legal entity

What would be the requirements, from a regulatory point of view, if a Netherlands Antilles bank wished to sell its entire business or a substantial part thereof? Would it require approval from the Netherlands Antilles Central Bank (de ‘Bank van de Nederlandse Antillen’)?

Generally, if the activity at a bank is characterized as some form of financial reorganization, for example, the prior approval of the Central Bank is required. The bank is also obliged to immediately inform the Central Bank in writing of any resolution for complete or partial liquidation or …
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28
Nov 2009
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Legal

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THE DUTCH CARIBBEAN AND ITS CIVIL LAW SYSTEM

Abstract rules are the starting point

The Netherlands Antilles are an autonomous part of the Kingdom of the Netherlands. The Kingdom of the Netherlands is composed of three parts: the Kingdom in Europe (popularly known as Holland, north of Belgium and west of Germany), the Netherlands Antilles (in the Caribbean Sea, north of Venezuela), and Aruba (also in the Caribbean Sea, north of Venezuela). Within the Kingdom of the Netherlands, the Netherlands Antilles are autonomous except for matters of defense and foreign affairs. Curacao is the largest of five islands that form the Netherlands Antilles. The other islands are Saba, St …
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21
Nov 2009
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Legal

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BREACH OF CONTRACT IN THE DUTCH ANTILLES (V)

Restrictions on termination

With regards to damages, the aim thereof is generally to restore the creditor to the position he would have been in had the contract been fulfilled. In case of breach of contract, the damages will usually be assessed by considering the situation the creditor would be in if restored to the position he would have been in had the contract been performed properly, by looking at costs incurred, wasted expenditure, any loss of profits etc.

The Netherlands Antilles Civil Code will generally allow an injured party to claim damages based on the expectations/positive interest, i.e. the position …
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24
Oct 2009
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Legal

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BREACH OF CONTRACT IN THE DUTCH ANTILLES (IV)

Non-performance as a response to non-performance

Whenever a party to a contract is faced with non–performance by the other party, the party’s first reaction might well be to suspend its part of the contract. In the legal sense of the word, suspending or withholding performance may be described as both a defense and a self help remedy, which a party can use when the other party does not perform its obligations under the contract. By its very nature it is a temporary remedy. As long as one party is in breach and the other is withholding its performance, the contract …
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17
Oct 2009
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Legal

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BREACH OF CONTRACT IN THE DUTCH ANTILLES (III)

Different cases of breach of contract

Any question of breach starts with an inquiry into the type of obligation at hand. It is necessary to know more about the type of obligation at hand in order to determine whether a party has failed to perform that obligation. When determining whether a party has failed to perform, it should be remembered that an obligation may carry with it a degree of ‘strictness’, ranging from a firm commitment, e.g. commitment to provide annual audited financial statements, to an obligation to use reasonable care and skill to achieve certain goals.

The Netherlands Antilles …
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10
Oct 2009
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Legal

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BREACH OF CONTRACT IN THE DUTCH ANTILLES (II)

Entitlement to specific performance

Under the Netherlands Antilles Civil Code the demand for specific performance is not a remedy for breach of contract in a strictly legal technical sense. In this system the entitlement to specific performance is a consequence of the duty to perform a (contractual) obligation. The contract itself, and not the breach of it, entitles the creditor to specific performance. If non–performance amounts to a breach of contract, i.e. meaning that a party does not perform though it should perform, the other party may be entitled to damages or termination of the contract.

However, in some cases, …
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03
Oct 2009
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Legal

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BREACH OF CONTRACT IN THE DUTCH ANTILLES (I)

Failure to properly perform

Under the Netherlands Antilles Civil Code (CC) breach of contract is defined as a failure to properly perform, perform on time, or to perform at all, which failure is attributable to one of the parties If a debtor breaches his obligations there are various courses of action available to the creditor. Firstly he may claim specific performance, secondly he may claim damages, whether or not in addition to specific performance, and thirdly, he may demand dissolution of the contract, with or without damages.

The CC distinguishes between excused and non–excused non–performance. According to Article 6:74 CC …
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26
Sep 2009
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Legal

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THE MANAGEMENT OF A DUTCH ANTILLES FOUNDATION

Management must act in the best interests of the foundation

The members of the management board of a Netherlands Antilles foundation have collective powers and responsibilities. The management board shall be in charge of the management of the foundation.

Although not explicitly provided for in Book 2 of the Netherlands Antilles Civil Code, it is considered a general rule of corporate law that the management board must act in the best interests of the foundation in the performance of its duties, even when acting upon instructions from others (e.g. a supervisory or advisory body).

The minimum standard of care is …
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19
Sep 2009
CATEGORY

Corporate

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LIFTING OF AN ATTACHMENT UNDER THE LAWS OF THE DUTCH CARIBBEAN (II)

Defendant has to show that the claim is invalid

Article 705, Paragraph 2 of the Netherlands Antilles Code of Civil Procedure states that the lifting of an attachment may be ordered if it appears summarily that the claim is invalid.

According to existing case law of the Dutch Supreme Court (see for instance Supreme Court dd June 14, 1996, NJ (Dutch Law Reports) 1997, 481), this means that the plaintiff (i.e. the party requesting the attachment be lifted in summary proceedings), with due regard for the limitations of summary proceedings, should establish a prima facie case (aannemelijk maken) that the …
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15
Aug 2009
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Legal

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LIFTING OF AN ATTACHMENT UNDER THE LAWS OF THE DUTCH CARIBBEAN (I)

Freezing assets is rather easy

Under Netherlands Antilles law any party with a prima facie claim may file a petition for a court order granting an attachment, which petitions are generally granted, solely based on the allegations in the petition. It is not required, under Netherlands Antilles law, that the litigant needs to demonstrate that, in absence of an attachment, there is a risk that the defendant would have insufficient assets to pay a judgment, as a threat of evading a judgment (by moving assets etc.) does exist.

Only with respect to some types of assets, such as registered shares …
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08
Aug 2009
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Legal

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