PREJUDICED INTERESTS OF MINORITY SHAREHOLDERS IN THE DUTCH CARIBBEAN
A minority shareholder may force the company to take-over his shares
Article 2:251(1) Netherlands Antilles Civil Code reads as follows: “A shareholder of registered shares, whose rights or interests are prejudiced to such an extent, by the conduct of the company or one or more co-shareholders, that a continuation of his shareholding cannot reasonably be required of him, may institute a claim against the company for withdrawal, demanding that his shares be acquired against payment in cash”.
This provision may only be successfully triggered in exceptional circumstances. This could be the case if the company or co-shareholders have a structural policy …
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DRAG-ALONG RIGHTS UNDER THE LAWS OF THE DUTCH CARIBBEAN
Drag-along rights may be validly created
A drag-along right is a right that enables a majority shareholder to force a minority shareholder to join in the sale of his shares in a company (NV or BV). The majority shareholder doing the dragging must give the minority shareholder the same price, terms, and conditions that apply to him. The question with regards to Dutch Caribbean law is whether the articles of association of an NV or BV may contain drag-along provisions.
Article 2:257(1) of the Netherlands Antilles Civil Code reads as follows: “The articles may provide that, in cases to be …
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WHAT IF A LENDER BECOMES A SHAREHOLDER OF THE BORROWER IN THE DUTCH CARIBBEAN?
The obligation to repay still ranks pari passu
If a lender takes over the shares in a borrower, the ranking of the borrower’s obligation to repay the loan does not change. Such obligations will continue to rank pari passu with the other creditors.
Let me give you an example. In the event of dissolution of the borrower, assuming the borrower is a company, all creditors must be satisfied as far as possible. A shareholder is, however, not considered to be a creditor of the company.
Under Article 2:30(1) of the Netherlands Antilles Civil Code, the liquidator must realize the assets …
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COVENANTS NOT TO COMPETE IN THE DUTCH CARIBBEAN
Such covenants are null and void
A non-competition clause, a.k.a. a covenant not to compete, is a stipulation between the employer and the employee whereby the latter is restricted in his right to work in a given way upon termination of the latter’s contract of employment. Typically, a non-competition clause will prohibit an employee from seeking employment, or being directly or indirectly involved in the same type of industry or business conducted by another employer. According to the laws of the Netherlands Antilles, any non-competition clause related to an employment contract is null and void and thus not enforceable. This …
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DUTCH CARIBBEAN REGULATORY FRAMEWORK
Central Bank monitors compliance
The regulatory rules and regulations in the Netherlands Antilles deal with credit institutions, investment institutions and administrators, insurers and insurance brokers, company pension funds, trust service providers, capital markets, anti-money laundering and identification, and foreign exchange control and license fees.
The Netherlands Antilles have one regulator: the Central Bank of the Netherlands Antilles (Bank van de Nederlandse Antillen). The Central Bank is a separate legal entity (rechtspersoon) having its seat in Curacao. The Central Bank is also an independent administrative body (zelfstandig bestuursorgaan) and does therefore not fall under the political responsibility of the Minister of …
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CAFE-RESTAURANT-PODIUM MAXIMA GEOPEND OP CURACAO
Cultureel & Culinar
Vandaag (17 september 2008) is Cafe-Restaurant-Podium “Maxima” geopend. Ik mocht het denkbeeldige lintje doorknippen door middel van een openingstoespraak.
“Maxima” is een initiatief van Errol Caprino, Simone Caprino-Arentz en Henk de Meza, en vormt een combinatie van een cafe, een restaurant en een podium. Culturele en culinaire activiteiten gaan hier hand in hand. Bij de podiumkunsten gaat het om zang, dans, muziek, toneel en (andere) folklore, waarbij multiculturele diversiteit voorop staat. Het podium zou moeten uitgroeien tot een culturele kweekvijver.
Daarnaast zullen de TV-programma’s BinnensteBuiten en Speakerscorner hier met publiek worden opgenomen. Met interviews in het programma BinnensteBuiten en gesprekken en …
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KEEPING, MAINTAINING AND RETAINING RECORDS FOR TAX PURPOSES IN THE DUTCH CARIBBEAN
Records must be kept for 10 years
Pursuant to article 43 of the Netherlands Antilles State Ordinance on National Taxes (Algemene Landsverordening Landsbelastingen, “GONT”) an entity is obliged to keep the records (‘administratie’) of its assets and liabilities that clearly show the rights and obligations at all times and that provide the data relevant to the levying of taxes. These records and the associated data carriers must be kept for a period of 10 years. The GONT does not define what “records” are. The word records is therefore a grey area.
It is important to know that these obligations are …
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PROVIDING INFORMATION TO THE DUTCH CARIBBEAN TAX INSPECTOR
Digital information is not sufficient
In general every company is obliged to supply the Tax Inspector with data and information that is or can be significant for levying taxes from that company. Regarding the aforementioned all data carriers or their content have to be made available at the request (and discretion) of the Tax Inspector.
Digital versions of the data and information do not represent sufficient compliance with this obligation. If there are only digital documents available (like e-mails), then the taxpayer must ensure that the Tax Inspector is able to read such data during the legal period that the …
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CURACAO RECEIVES TOP RANKING IN HEDGE FUND ADMINISTRATION SURVEY
Curacao is again ranked #1
According to the 2008 Global Custodian Hedge Fund Administration Survey, Curacao (Dutch Caribbean) is the # 1 location for hedge fund administration services. Curacao outperformed Singapore, Dublin, Toronto, Hong Kong, Luxembourg, Amsterdam and the Cayman Islands, to name just a few.
Curacao is known for its excellent legal and tax infrastructure, high quality of services and reliability. For further info on hedge funds and Curacao’s professional environment: click here.
Karel Frielink Curacao-based Attorney (lawyer) / Partner
CHURANDY MARTINA WINS SILVER ON 200M IN BEIJING, BUT…
was wrongly disqualified
On 20 August 2008, Churandy Martina won the silver medal in the 200 metres at the Olympics behind Usain Bolt in 19.82 seconds, the first time he had run sub-20s. He was the first medal winner for the Netherlands Antilles after Jan Boersma won silver in sailing at the 1988 Summer Olympics in Seoul.
But Churandy Martina later was disqualified after the U.S. team protest that he had run out of his lane. However, the Netherlands Antilles has appealed to the Court of Arbitration for Sport (CAS) in Lausanne to restore …
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DUTCH CARIBBEAN PRIVATE INTERNATIONAL LAW
The legal effects doctrine: an exception to the lex loci delicti rule
Under Dutch Caribbean rules of private international law, a claim arising from an unlawful act is governed, in the absence of a choice of jurisdiction by the parties, by the law of the country were the unlawful act was committed (lex loci delicti). However, this rule may possibly not apply if the tortfeasor and the injured party are both residing in a country other than that where the unlawful act was committed and if the legal effects occur entirely in the other country. This is the so-called legal …
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INADEQUATE CAPITALIZATION IN THE DUTCH CARIBBEAN
Liability for thin-capitalization?
In terms of ‘piercing the corporate veil’, thin or inadequate capitalization usually means capitalization that is not in proportion to the nature of the risks the business of the corporation necessarily entails; in other words it is based on likely economic needs rather than legal requirements.
Shareholders of a company in the Netherlands Antilles are under an obligation to pay to the company what is due with respect to the shares, i.e. the shareholder’s capital contribution, and such contribution may not be withdrawn without due process. This is the only financial obligation of a shareholder towards the …
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