LECTURE ON GOOD CORPORATE GOVERNANCE IN CURACAO
Corporate Governance Adviser must be a strong and independent watchdog over the executive also
On April 13, 2010 a seminar on Good Corporate Governance with respect to Curacao-owned enterprises and foundations was held in Curacao, and organized by Certa Legal. I was one of the keynote speakers and delivered my presentation in the Dutch language (click here for the presentation or click here for the coverage of the event by the Antilliaans Dagblad).
I argued that government-owned companies should be left out of the political sphere as much as possible, so they can benefit …
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ORDINARY ADVERSARIAL VERSUS SUMMARY PROCEEDINGS IN THE DUTCH CARIBBEAN
The court only considers the key issues
According to Article 110 and 111 of the Netherlands Antilles Code of Civil Proceedings (NACCP), all adversarial proceedings shall be initiated by means of a petition to the Court of First Instance. Proceedings so initiated are ordinary proceedings, unless the petitioner expressly opts for preliminary relief proceedings (kort geding) under article 226 NACCP. This article provides that in urgent cases which require an immediate decision the plaintiff may request a provisional decision (beslissing bij voorraad).
Article 229 NACCP provides that a provisional decision rendered as a result of this special type of proceeding …
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OBITER DICTUM OR NOT?
Litigating twice on the same matter is not allowed
The Netherlands Antilles Code of Civil Procedure prevents parties from litigating twice on the same legal issue. The principle that a final judgment of a competent court is conclusive upon the parties in any subsequent litigation involving the same cause of action is known as ‘res judicata’. A Dutch court case is described below illustrating this principle: Utrecht District Court of 19 March 2009 (NJF 2009/291).
In initial litigation, the claimant had sought payment of certain contractual penalties. The Court of Appeals rejected the claim on two separate grounds, the first …
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DUTCH CARIBBEAN LITIGATION AND THE ESTABLISHMENT OF FACTS
Failing to contest may make a fact true
Facts play an important role in civil litigation. Facts are established by the Court in First Instance of the Netherlands Antilles or Aruba and by the Joint Court of Appeal of the Netherlands Antilles and Aruba, not by the Supreme Court. A review by the Supreme Court is not a full review, but is limited to verifying that the Court whose judgment is under review has not breached Netherlands Antilles laws (or Aruban laws as the case may be) and that there have been no defects in the proceedings resulting in the …
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CHAMBERS GLOBAL 2010 LAUNCHED
All-new law firm rankings
The Chambers Global 2010 was launched at the end of February 2010. You will find the all-new rankings and editorial on their website – www.chambersandpartners.com. The Chambers Global focuses on firms and lawyers who have truly international practices. This is what Chambers and Partners has to say about Spigthoff Attorneys & Tax Advisers Curacao:
This group has offices on Curaçao and in Amsterdam, which allows it to attract a great deal of work deriving from the Netherlands itself. With a focus on international financial deals and corporate work, the …
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ARUBAN LAW REGARDING CORPORATE AUTHORITY
The Aruba Trade Register should be checked
The laws of Aruba provide that, subject to restrictions laid down by any statutory provision or a corporation’s articles of association, the board of directors of a company shall be competent to represent the company, i.e. a limited liability company (NV, AVV or VBA). In the event of the company having several managing directors, any managing director shall be competent, insofar as not otherwise provided by the articles of association (or sometimes bylaws). The articles of association may also grant other officers, to be designated by or pursuant to the articles, representative authority, …
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PLC CROSS BORDER LAW FIRM RECOMMENDATIONS 2010
Netherlands Antilles
According to PLC Cross Border (Which lawyer?), Spigthoff Attorneys & Tax Advisers is one of two firms dominating the Netherlands Antilles market for international work, both on- and offshore.
Spigthoff ranks high in corporate / M&A and dispute resolution.
Martijn Welten, who specializes in corporate law, mergers & acquisitions and corporate litigation, is (highly) recommended in the areas of dispute resolution and corporate/M&A.
Karel Frielink is considered a leading professional in the area of high net-worth private clients. Karel is highly recommended in the areas of corporate and M&A, …
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DRAG-ALONG RIGHTS UNDER THE LAWS OF ARUBA
Drag-along rights may be validly created
On January 1, 2009 the new Aruba Ordinance on companies with limited liability (vennootschap met beperkte aansprakelijkheid; VBA) became effective.
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 (VBA). Generally, 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 Aruban law is whether the articles of association of a VBA may contain drag-along provisions.
Article 25(1) of the …
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SEPARATION BETWEEN LEGAL AND BENEFICIAL OWNERSHIP OF SHARES IN THE DUTCH CARIBBEAN
The beneficial owner of shares is not a shareholder
On March 1, 2004 the act on corporate law (Book 2 Netherlands Antilles Civil Code) became effective. The Act governs NVs (‘public limited liability company’) and BVs (‘private limited liability company’). The main object of the legislator was to provide flexibility and maximum freedom for organization and presentation. Accordingly, the Act contains few mandatory provisions, such as provisions relating to the interests of creditors and minority shareholders.
Concepts like registered, subscribed and contributed capital do not appear in the Act. As a result no minimum capital is required unless such a requirement …
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THE SELLING OF SHARES BY A DUTCH CARIBBEAN COMPANY
Answers to foreign counsel queries
A Netherlands Antilles company (NV or BV) may have assets, both local and foreign. Not seldom such a company wants to sell all or a portion of its assets. If foreign assets or a foreign buyer is involved, foreign counsel always asks questions about the laws of the Netherlands Antilles. Several of those questions will be dealt with here. Let’s assume that a Netherlands Antilles company wants to sell its shares in a Dutch BV.
The Netherlands Antilles NV or BV may sell some or all of its shares in the Dutch BV. It is customary …
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A COMPARISON OF THE DUTCH BV AND THE DUTCH ANTILLEAN BV
There are similarities and differences
There are certain similarities between the Dutch and the Antillean BV, in fact they are fundamentally the same type of entity. The main object of the Antillean legislator was, however, flexibility and maximum freedom of organization and presentation. Accordingly, the Antillean Act contains few mandatory provisions, such as provisions relating to the interests of creditors and minority shareholders.
An Antillean BV may be established in a form that resembles what a foreign shareholder encounters in his own legal system: the BV can, for example, be organized like a Dutch BV or NV, a Delaware corporation, …
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THE INCORPORATION OF A NETHERLANDS CARIBBEAN LIMITED LIABILITY COMPANY
Incorporating an NV or BV is not a hassle
The act on corporate law (Book 2 Netherlands Antilles Civil Code) governs the NV (‘public limited liability company’) and BV (‘private limited liability company’). These companies can be used for group finance or holding activities, (international) joint-ventures, funds, structured finance and “plain-vanilla” (local) activities.
A notarial deed is required for the formation of an NV or BV and for any amendment to articles of association (a.k.a. articles of incorporation). Formation can however, be very quick (within one or two days if necessary) and doesn’t require many other formalities. The founders of …
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