ENQUETEPROCEDURE OVERHEIDSVENNOOTSCHAPPEN CURACAO
Behandeling bij het Gemeenschappelijk Hof van Justitie
Op 5 juni 2013 heeft bij het Gemeenschappelijk Hof van Justitie van Aruba, Curaçao en Sint Maarten en van Bonaire, Sint Eustatius en Saba de behandeling plaatsgevonden van het verzoek van het Openbaar Ministerie om een enquête op grond van het Burgerlijk Wetboek van Curacao te gelasten naar het beleid en de gang van zaken bij de overheids NV’s Aqualectra, Curoil/Curgas en Refinería di Kòrsou (RdK). Klik hier voor de beschikking van het Hof van 15 juli 2013 en klik hier voor de Extra van 16 juli 2013.
Fundashon …
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LITIGATION IS A SKILLED PROFESSION (part 6)
Proceedings in various jurisdictions
Sometimes cases which are strongly interrelated to each other are brought before different courts. For instance you instigate proceedings with the court in Curacao and your counterparty instigates proceedings at the same time against you before the court in Aruba or in Sint Maarten. If the merits of the case involve the same dispute it would hardly be efficient if litigation would take place before two different courts. In that case there would also be a risk that contradictory judgments would be delivered. The Code of Civil Procedure provides for an arrangement with regard to referral …
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LITIGATION IS A SKILLED PROFESSION (part 5)
Duty to submit exhibits
It can of course happen that it is not a plaintiff but the defendant or a third party who has the documents by which the plaintiff can prove the existence and extent of his claim. There is a separate procedure by which such documents can be demanded. This procedure, better known as the duty to submit exhibits of Section 843a of the Code of Civil Procedure requires several conditions which must be satisfied before the court can allow that claim (exhibitieplicht).
Many other issues can play a role. I will mention a few. …
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LITIGATION IS A SKILLED PROFESSION (part 4)
Statement of Defense
As the defending party you have to put up a defense (Statement of Defense) and in this regard this statement should not only be clear and complete but you should also know for instance what formal defenses you should advance. With regard to the latter for instance the plea of limitation of action comes to mind. In many cases the period of limitation of action (verjaring) is five years but sometimes it is a much shorter period. The short period of limitation of six months applies to the annulment of a resolution of a legal entity registered …
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LITIGATION IS A SKILLED PROFESSION (part 3)
Foreign law
It often happens that for instance the court in Curacao has jurisdiction to hear a case but the claim is governed by the law of another country. In that case the court must be informed of the contents of that foreign law by the parties. Obviously, before you institute these proceedings you must have examined whether your claim has any chance of success. And you have to consider the question of what you will do if the claim is awarded by the court in Curacao but you have to go abroad for enforcement of that judgment. Sometimes you …
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LITIGATION IS A SKILLED PROFESSION (part 2)
Which court is competent to hear the case?
In order to answer the question of which court you should bring your action before, the type of claim can also be important. In Curacao you must bring your claim for collection of a sum of money or a dispute involving a take-over contract before the Court of First Instance. But if you start inquiry proceedings you should go to the Joint Court of Appeal. And if as a civilian you want inquiry proceedings to be brought against a State-owned company, the petition to this end must be submitted to the Public …
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LITIGATION IS A SKILLED PROFESSION (part 1)
Everything boils down to knowledge and experience
Litigation appears to be simple. For instance you have a monetary claim on someone (a private person or an enterprise) and you ask the court to determine in a judgment that you indeed have this claim. And you ask the court that the counterparty be ordered to pay the claim. And once you have this judgment, you can enforce it with the assistance of a bailiff (deurwaarder). This means for instance seizing a trade stock and selling it publicly in an auction. Simple, yes? Why then is litigation a discipline for which you …
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CROSS BORDER CONVERSION AND MERGER (part 10)
Legal entities under supervision
So far we have only looked at legal entities not under the supervision of the Central Bank of Curacao and St. Maarten (CBCS). Just a few words about institutions that are under supervision.
The following applies to banks with a registered seat in Curacao for instance. These entities have a license from the CBCS pursuant to the Ordinance on the Supervision of Bank and Credit Institutions 1994 (Landsverordening toezicht bank- en kredietwezen 1994: ‘Ltbk’). The prior consent of the Central Bank is required for each amendment to the articles of association (Article 23 paragraph 1 Ltbk). …
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CROSS BORDER CONVERSION AND MERGER (part 9)
The cross-border merger
We now look at the cross-border legal merger. Before 1 January 2012 the possibility already existed in Curacao that in connection with a merger, a foreign legal entity as the disappearing legal entity could merge with a comparable legal form of Book 2 of the Civil Code on the condition that the law governing that foreign legal entity was not incompatible with the merger and the manner in which it was brought about (Section 2:323a of the Civil Code). This inbound merger possibility still exists.
Since 1 January 2012 it is also possible that a legal entity …
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CROSS BORDER CONVERSION AND MERGER (part 8)
Changes in Curacao as of 1 January 2012
The most important amendment in the Curacao provision with regard to the conversion of an NV or BV into a foreign legal entity (outbound) is that the requirement of the personal notice of liability by managing directors and shareholders has been removed as from 1 January 2012 onwards, except for the case mentioned below. This provision has been replaced by the possibility for creditors or contractual counterparties of the company wishing to convert into a foreign legal entity to lodge an objection on the grounds that they will be prejudiced in their …
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CROSS BORDER CONVERSION AND MERGER (part 7)
The conversion of or into a foundation
If a foreign legal entity wants to be converted into a Curacao foundation (inbound) the Court in Curacao must grant consent (Section 2:303 subsection 2 of the Civil Code). I was unable to find any explanation of this in the Explanatory Memorandums of Book 2 of the Civil Code of 2003 and 2010.
That authorization by the court is required for the conversion of a foundation into another – whether or not foreign – legal form, can certainly be explained (Section 2:306 subsection 2 in conjunction with Section 2:300 subsection 4 of the …
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