THREE QUESTIONS ON DUTCH CARRIBBEAN BANKRUPTCY LAWS
FAQ
Question 1
In which cases and by whom may bankruptcy proceedings be initiated in accordance with Netherlands Antilles bankruptcy law?
Filing for bankruptcy may be done either by the debtor itself or by one or more of its creditors. If the debtor is a company, the managing directors do not have the authority to petition for bankruptcy of the company without authorization thereto from the general meeting, unless otherwise stipulated in the articles of association.
The pre-requisites for making a bankruptcy order on application, regardless of whether the application is made by the debtor or by any of the …
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NEW PRESIDENT CURACAO BAR ASSOCIATION
Meeting held on 12 December 2008
At the Curacao Bar Association’s annual meeting, Karel Frielink (Spigthoff) was formally elected to serve as President of the Curacao Bar Association for a two year-term. He is the successor of Eric de Vries (HBN Law).
Eric Bokkes (Bokkes Fontein Advocaten), Daniel Zahavi (ZL Law) and Chester Peterson (Sulvaran & Peterson) have been re-elected as board member of the Curacao Bar Association: Peterson as Vice-President, Bokkes as Treasurer and Zahavi as Secretary.
Frielink started practicing as an attorney in 1989 in Amsterdam, but moved to Curacao in 1997. He is a partner with Spigthoff …
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DUTCH CARIBBEAN CORPORATE LAW IN PRESSING CIRCUMSTANCES
Rules of law, articles and contract may be set aside
According to Section 2:7(2) of the Netherlands Antilles Civil Code, any rule imposed, for instance, on board members or shareholders of a limited liability company, will not be deemed to apply, to the extent, in the given circumstances, that these would be unacceptable in terms of reasonableness and fairness.
Generally speaking, the management board of a company is not entitled to sell the company’s business or a substantial part thereof, without the approval of the shareholders’ meeting.
However, in the event an immediate and urgent decision is absolutely necessary for the …
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BOARD OF DIRECTORS CURACAO CHAMBER OF COMMERCE
Elections held on 11 December 2008
Willem “Billy” Jonckheer (owner Jonckheer Advertising & Marketing Consultants) has been re-elected as member of the Board of Directors of the Curacao Chamber of Commerce. Karel Frielink (partner Spigthoff Attorneys & Tax Advisers) has been elected to the same Board.
The Curacao Chamber of Commerce and Industry is the voice of private enterprise in Curacao. It represents the general interests of the Curacao business community, keeps a complete roster of Curacao businesses, and provides information and services to local and international companies with an interest in doing business in, trading and …
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CAN A FOREIGN COMPANY BUY SHARES IN A DUTCH CARIBBEAN COMPANY?
Generally speaking: yes
Under Netherlands Antilles law, no specific requirements exist regarding the purchase of shares in a Netherlands Antilles offshore company by a foreign company. The Netherlands Antilles do not have any anti-trust regulations.
In the Netherlands Antilles there are no statutory requirements preventing the sale of one or all the shares issued and outstanding or any requirements in the form of governmental license or registration. Certain restrictions apply however, if the target company is a bank or insurance company.
According to Netherlands Antillean corporate law shares are transferable, in principle. However, there is one exception. The articles of …
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DUTCH CARIBBEAN COURT DECISION IN TELECOM CASE
Scarlet about to enter telecom market in Sint Maarten
On 18 November 2008, the Administrative Court in Sint Maarten ruled that the Executive Council of Sint Maarten was not authorized to refuse Scarlet a business license for the provision and operation of international telecommunications services in Sint Maarten (click here for the judgment).
Scarlet, represented by Dr. Douwe Boersema of the law firm Spigthoff in Curaçao, appealed through the courts against the decision of the authorities in Sint Maarten to deny it such a license based on a moratorium on new telecom companies. The moratorium …
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INSURANCE BUSINESS IN THE DUTCH CARIBBEAN (II)
Limitations apply to a foreign insurance company
A foreign insurance company, i.e. a company not having its seat in the Netherlands Antilles and not operating through any kind of branch office (including a local representative), is allowed to insure a risk located in the Netherlands Antilles (for instance Curaçao), provided this occurs on an incidental basis (Explanatory Memorandum NOSI, Parliament of the Netherlands Antilles, Session 1987-1988, No. 3, p. 7).
In such cases, no license or registration requirements apply. The point is, however, that it is up to the Central Bank to decide whether this criterion has been met. Unfortunately …
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SERVICE OF PROCESS IN THE DUTCH CARIBBEAN
This is done by a bailiff
What is the procedure for the service of foreign proceedings under Netherlands Antilles procedural law for a company having its registered address in, for instance Curaçao?
Under Netherlands Antilles procedural law, the service of proceedings on a Netherlands Antilles legal person will be done by means of a bailiff’s notification. This notification shall be served (i) on the person or residence of the president of the management board of the company or (ii) on the business and/or registered address of the company.
Netherlands Antilles procedural law does not provide for the possibility to serve …
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CITIZENS RESCUE ORGANIZATION CURACAO NEEDS YOUR SUPPORT
Wanted: on-shore rescuers
The Citizens’ Rescue Organization, Curacao (CITRO) provides search and rescue services in the waters around Curacao in the Netherlands Antilles. The organization comprises a group of volunteers, who are on call and prepared for sea rescue 24 hours a day 7 days a week.
As a member of the CITRO Advisory Council I am finding ways to help with fundraising. CITRO requires funding on an ongoing basis for its activities. Please consider being one of CITRO’s ‘on-shore rescuers’ and feel free to contact me for further information. Thank you.
Karel Frielink
News from Citizens …
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PLEDGING FUTURE RECEIVABLES IN THE DUTCH CARIBBEAN
Bankruptcy pledgor will prevent valid pledge
Under the laws of the Netherlands Antilles, a right of pledge may be established on future receivables, however, the right of pledge on a future receivable will only be perfected the moment such a receivable comes into existence, provided that, at such a time, the pledgor is authorized to dispose over or encumber such receivables (‘beschikkingsbevoegd’).
Therefore, if a pledgor has been granted a suspension of payments (‘surséance van betaling verleend’) or has been declared bankrupt (‘failliet verklaard’) in the Netherlands Antilles, before a future receivable, directly resulting from an existing legal relationship, comes …
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THE DUTCH CARIBBEAN AND OECD STANDARDS OF TRANSPARANCY AND EXCHANGE OF INFORMATION
OECD Secretary-General compliments the Netherlands Antilles and Aruba
In his speech on 21 October 2008, OECD Secretary-General Angel Gurría, addressed the issue of transparency and exchange of tax information in relation to offshore jurisdictions. The Secretary-General:
“In 2000 we identified over 40 tax havens and between 2000 and 2005 we were able to convince 35 of these tax havens to commit to the OECD standards of transparency and exchange of information. Seven tax havens initially refused to make this political commitment and were placed on a list of uncooperative tax havens. By 2008 this list …
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FOREIGN CLAIMS SECURED BY DUTCH CARIBBEAN SECURITY RIGHTS
The claim must be sufficiently identifiable
Many financing arrangements are of a cross-border nature. For instance, a loan agreement governed by English law with the loan secured by a Netherlands Antilles right of pledge. This raises all kinds of questions.
Any foreign right, for instance a claim, in which a Netherlands Antilles pledge is created, must be sufficiently identifiable (‘met voldoende bepaaldheid omschreven’) within in the meaning of section 3:84(2) of the Netherlands Antilles Civil Code.
Also, if one wishes to create a right of pledge in a foreign right, such a right must be a registered claim (‘een tegen …
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