THE ARTICLES OF ASSOCIATION OF A DUTCH CARIBBEAN LEGAL ENTITY (III)
Case law the principle of good faith
A legal entity and all involved in its organization have a legal duty to behave towards each in accordance with the principles of reasonableness and fairness, i.e. (objective) good faith. A provision or requirement contained in a legal entity’s articles of association or by-laws, may be set aside by the Courts if, in any given circumstances, it is in breach of the principles of reasonableness and fairness. Good faith may, in a certain cases, extinguish rules prevailing between the parties or exclude their application.
I will discuss two Dutch court cases below. It …
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THE ARTICLES OF ASSOCIATION OF A DUTCH CARIBBEAN LEGAL ENTITY (II)
Limitations on the applicability of provisions
As a general matter of Netherlands Antilles law, the interpretation of terms contained in legal documents, such as the articles of association and the by-laws, however only to a certain extent, inter alia subject to the intention of the parties, and the enforcement thereof, is subject to the overriding principle of “fairness and reasonableness” (in Dutch: “redelijkheid en billijkheid”) meaning that under certain circumstances a term of the articles of association or by-laws may not be applicable in so far as this term would in such circumstances be contrary to this principle.
According to …
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THE ARTICLES OF ASSOCIATION OF A DUTCH CARIBBEAN LEGAL ENTITY (I)
Ranging from basic to extremely complex
Under the laws of the Netherlands Antilles, public and private limited liability companies (NVs or BVs), foundations, co-operatives, mutual insurance societies and associations are considered legal entities.
The articles of incorporation (a.k.a. articles of association) provide the regulatory framework by which these legal entities in the Netherlands Antilles are governed and by which they must abide. Additionally regulations (‘reglementen’) are sometimes also used as a sort of ‘by-laws’.
The articles of association are more or less comparable with the constitution of a country. Regulations can for instance be adopted by a managing board, a …
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CARIBBEAN KIDS NEWS
The Dutch Antillean ‘Jeugdjournaal’
The Curacao-based Foundation Youth Into Media (Stichting Youth Into Media) is responsible for the sustainable development of a youth news program – Caribbean Kids News – on television and the internet for the Netherlands Antilles and Aruba. The first show of ‘Caribbean Kids News’ was on September 14, 2009 on TeleCuracao.
Caribbean Kids News is a unique program for Aruba and the Netherlands Antilles (Curacao, Bonaire, St. Maarten, St. Eustatius and Saba), thus for six very special but quite different islands. For the first time a news program informs young people between …
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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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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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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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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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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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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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LEGAL REBELS ARE REMAKING THE LEGAL PROFESSION
Dozens of lawyers are remaking their corners of the profession
According to the American Bar Association (ABA), “the legal profession is not just struggling through a recession but undergoing a structural break with the past. There is a growing consensus that the profession that emerges from this downturn will be different in fundamental ways from the one that entered it.”
Over the next three months, the ABA will be profiling 50 legal innovators a.k.a. Legal Rebels. These Legal Rebels are finding new ways to practice law, represent their clients, adjudicate cases and train the …
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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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