ADVOCATEN EN BELANGENVERSTRENGELING
Een advocaat moet onafhankelijk zijn
Van een advocaat wordt verwacht dat hij onafhankelijk is. Bij die onafhankelijkheid gaat het om een houding: de instelling van de advocaat tegenover zijn cliënt, maar ook tegenover het gerecht en in feite tegenover elke andere betrokken partij. Hij behoort de belangen van zijn cliënt te behartigen en zich niet door zijn eigenbelang te laten leiden. Hij mag evenmin de belangen behartigen van anderen als die in strijd zijn met het belang van zijn cliënt.
In de Gedragsregels voor Advocaten wordt dit uitgangspunt als volgt omschreven: “De advocaat mag zich niet met de behartiging van …
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ICC FRAUDNET
The leading specialist international network of fraud and asset recovery lawyers
Organized and operating under the auspices of the Commercial Crime Services of the International Chamber of Commerce (ICC), FraudNet is a 24/7 international rapid deployment force that pries open the vault of bank secrecy and helps victims locate and recover their stolen assets with the same cyber powered speed, stealth, reach and proficiency as the most sophisticated global fraud network.
Fraudsters meet their match in FraudNet’s experienced team of civil asset recovery lawyers, investigators and forensic accountants, who creatively wield their own sophisticated legal and investigative tools to trace …
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OFFERING SECURITIES FROM CURACAO AND ST. MAARTEN
About the obligation to publish a prospectus
The legal regulations in connection with the law providing for financial supervision are materially identical in Curaçao and Sint Maarten. For convenience sake we will mainly refer to Curaçao below.
The search for a prospectus requirement in the law on supervision will be in vain. The National Ordinance on the Supervision of Investment Institutions and Administrators (Landsverordening toezicht beleggingsinstellingen en administrateurs: ‘Ltba’) prohibits everybody in Section 3 subsection 1 from asking or obtaining in or from Curaçao funds or other assets in order to participate in an investment institution – which has not …
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ELECTRONIC MONEY INSTITUTIONS IN ARUBA
A license is required
The European Central Bank defines e-money as follows (a non-legal definition): “E-money can be defined as any amount of monetary value represented by a claim issued on a prepaid basis, stored in an electronic medium (for example, a card or computer) and accepted as a means of payment by undertakings other than the issuer, predominantly for small-value transactions (for example, the settlement of modest transactions over the Internet and of parking or telephone charges and payment for public transport services).” (Electronic Money Institutions. Current trends, regulatory issues and future prospects. Legal Working Paper Series, No. 7/2008).
ASSET PROTECTION IN CURACAO
Curaçao: a jurisdiction not to be missed
A Curaçao private foundation or a trust is often used for asset protection and privacy purposes. The Curaçao private foundation and the Curaçao trust must be set up by a notarial deed executed before a civil law notary in Curaçao. Both the private foundation and the trust are a very flexible solution for asset protection and privacy purposes. A private foundation, for instance, can be easily implemented in international holding structures through Curaçao and is very suitable for family asset protection. By means of a letter of wishes or provisions in the articles …
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THE CURACAO TRUST
Can be used as protected or segregated cell company
On 1 January 2012, new legislation entered into force according to which it is now possible to set up a trust (Curacao Trust) similar to the trust in Anglo-Saxon common law jurisdictions. The introduction of the Curacao Trust serves as an important instrument which could be used within financial transactions in the Caribbean as a significant part of these transactions are initiated from common law jurisdictions.
The Curacao Trust can be used for different purposes, such as, for example:
CONFLICTING INTERESTS IN CURACAO INSOLVENCY LAW (part 8)
Final remarks
The receiver can be faced with a multitude of conflicting interests. Often he will be able to reach a weighing of interests relatively quickly and without many problems, but sometimes he has to balance on a thin bankruptcy tightrope. In doing so the law offers him hardly any support and neither does case law due to it being strongly case-based, although there is the reassuring fact that from a liability point of view many of his decisions should ‘only’ be able to bear a limited review.
However, the receiver personally being faced with a conflict of interest, which …
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CONFLICTING INTERESTS IN CURACAO INSOLVENCY LAW (part 7)
Conflicting interests in connection with consolidated business operations
When multiple companies of the same group go bankrupt, it can be of major importance for a creditor of one of these companies to know how the winding up is developing of one or more of the other companies. Particularly when a consolidated bankruptcy is involved, the creditors will have to be alert. In connection with a consolidated bankruptcy, there will in actual fact be one single joined estate. If this is the case, in the various bankruptcies one single joint creditors’ meeting must be held of which all the creditors of …
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CONFLICTING INTERESTS IN CURACAO INSOLVENCY LAW (part 6)
Conflicting interests of different bankruptcy estates
The management of different but associated bankruptcy estates can be entrusted to one and the same person who therefore is appointed several times as receiver. In this connection group relationships come to mind. It is true that in connection with different estates with one and the same person as receiver, companies not affiliated in a group also come to mind, but this will probably not often occur. Regularly, (members of) groups go bankrupt (for instance RSV, OGEM, DAF, Fokker, Infotheek Groep, Bredero, Text Lite, Mediasafe, Medicopharma, Palthe, Verto, Wyers, HCS, UPC, Van der Moolen, …
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CONFLICTING INTERESTS IN CURACAO INSOLVENCY LAW (part 5)
Different types of interests
A receiver cannot escape the weighing of interests. Such a weighing should be verifiable. The line of thought followed by the receiver should be clear. Particularly because, apart from his liability and remuneration, these being of a different order, he has no self-interest in the winding-up of the bankrupt estate, the receiver is the obvious person to weigh the interests. If required he can and will himself be assisted by an expert. In connection with bigger bankruptcies or when a business is continued, it is for instance sensible also to appoint as receivers one or more …
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CONFLICTING INTERESTS IN CURACAO INSOLVENCY LAW (part 4)
The receiver and personal interests
The duties of the receiver are to represent the interests of others. When his personal interests are affected he must observe extreme restraint and openness. If there is a conflict of interest or if a semblance of it has been created, he ought to withdraw as the receiver. The receiver is not allowed to sell goods forming part of the estate to himself, even if this would have been allowed by the supervisory judge (direct conflicting interest). Even bidding in a public auction he has organized is in my opinion not compatible with the independence …
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CONFLICTING INTERESTS IN CURACAO INSOLVENCY LAW (part 3)
Conflicting interests of the receiver/advocate and his law firm
A receiver must be able to take decisions freely and be able to weigh the interests involved in a bankruptcy against each other in an objective and unbiased manner. Before accepting an appointment as receiver, the respective person must make certain that he is free to act as such. If he had been the advocate (lawyer, attorney) of the bankrupt or of his shareholder or managing director before the bankruptcy order, despite his qualities he is presumed to be unable to act as such, at any rate any semblance of bias …
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