BREACH OF CONTRACT IN THE DUTCH ANTILLES (IV)

Non-performance as a response to non-performance

Whenever a party to a contract is faced with non–performance by the other party, the party’s first reaction might well be to suspend its part of the contract. In the legal sense of the word, suspending or withholding performance may be described as both a defense and a self help remedy, which a party can use when the other party does not perform its obligations under the contract. By its very nature it is a temporary remedy. As long as one party is in breach and the other is withholding its performance, the contract …
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17
Oct 2009
CATEGORY

Legal

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BREACH OF CONTRACT IN THE DUTCH ANTILLES (III)

Different cases of breach of contract

Any question of breach starts with an inquiry into the type of obligation at hand. It is necessary to know more about the type of obligation at hand in order to determine whether a party has failed to perform that obligation. When determining whether a party has failed to perform, it should be remembered that an obligation may carry with it a degree of ‘strictness’, ranging from a firm commitment, e.g. commitment to provide annual audited financial statements, to an obligation to use reasonable care and skill to achieve certain goals.

The Netherlands Antilles …
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10
Oct 2009
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Legal

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BREACH OF CONTRACT IN THE DUTCH ANTILLES (II)

Entitlement to specific performance

Under the Netherlands Antilles Civil Code the demand for specific performance is not a remedy for breach of contract in a strictly legal technical sense. In this system the entitlement to specific performance is a consequence of the duty to perform a (contractual) obligation. The contract itself, and not the breach of it, entitles the creditor to specific performance. If non–performance amounts to a breach of contract, i.e. meaning that a party does not perform though it should perform, the other party may be entitled to damages or termination of the contract.

However, in some cases, …
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03
Oct 2009
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Legal

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BREACH OF CONTRACT IN THE DUTCH ANTILLES (I)

Failure to properly perform

Under the Netherlands Antilles Civil Code (CC) breach of contract is defined as a failure to properly perform, perform on time, or to perform at all, which failure is attributable to one of the parties If a debtor breaches his obligations there are various courses of action available to the creditor. Firstly he may claim specific performance, secondly he may claim damages, whether or not in addition to specific performance, and thirdly, he may demand dissolution of the contract, with or without damages.

The CC distinguishes between excused and non–excused non–performance. According to Article 6:74 CC …
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26
Sep 2009
CATEGORY

Legal

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RESTARTING SECURITIZATION MARKETS IS CRITICAL

IMF: securitization can positively contribute to financial stability and sustainable economic growth

Although recent public opinion has focused on what went wrong with securitization, according to the International Monetary Fund (IMF), it is important to recognize the many benefits associated with sound securitization. Mobilizing illiquid assets and transferring credit risk away from the banking system to a more diversified set of holders continues to be an important objective of securitization, and the structuring technology in which different tranches are sold to various investors is meant to help to more finely tailor the distribution of risks and returns to potential …
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22
Sep 2009
CATEGORY

Finance

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THE MANAGEMENT OF A DUTCH ANTILLES FOUNDATION

Management must act in the best interests of the foundation

The members of the management board of a Netherlands Antilles foundation have collective powers and responsibilities. The management board shall be in charge of the management of the foundation.

Although not explicitly provided for in Book 2 of the Netherlands Antilles Civil Code, it is considered a general rule of corporate law that the management board must act in the best interests of the foundation in the performance of its duties, even when acting upon instructions from others (e.g. a supervisory or advisory body).

The minimum standard of care is …
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19
Sep 2009
CATEGORY

Corporate

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CROSS-BORDER CONVERSIONS AND MERGERS IN THE DUTCH ANTILLES

No outbound mergers allowed

According to the laws of the Netherlands Antilles, a limited liability company (NV or BV) may convert to a foreign legal entity provided that under the laws governing such a foreign legal entity the consequence of such conversion shall be the continued existence of the company as a legal entity – in its new legal form. The Netherlands Antilles Corporate Code also allows a foreign legal entity to convert to a Netherlands Antilles legal entity.

The Netherlands Antilles corporate Code does not permit a merger of a Netherlands Antilles company, as the disappearing company, into a …
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12
Sep 2009
CATEGORY

Corporate

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BEARER SHARES IN A NETHERLANDS CARIBBEAN COMPANY

Registered shares must be issued first

On 1 March 2004, the new Netherlands Antilles act on corporate law (Book 2 Civil Code) became effective. Since that date it is no longer possible to (directly) issue bearer shares.

A company with only bearer shares has no shareholders’ register. Only a public limited liability company (NV) may issue bearer shares, provided that registered shares be issued first and that they have been fully paid up. These may subsequently be converted into bearer shares. The issuance (of registered shares) requires a ‘deed of issuance’, which must be signed by both the company and …
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05
Sep 2009
CATEGORY

Corporate

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THE REPAYMENT OF SHARE PREMIUM IN THE NETHERLANDS CARIBBEAN

Net equity may not be or become negative

From the legal point of view in Netherlands Antilles, share premium (’agio’) forms part of the company’s free reserves, and does not qualify as share capital. If share premium is to be repaid, the company’s financial condition should at the time allow for it, i.e. the net equity of the company may not be or become negative as a result of such repayment. If the company has shares with a nominal value, the repayment may not result in the nominal capital exceeding the net equity of the company.

In addition to this …
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22
Aug 2009
CATEGORY

Corporate

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UNLAWFUL ACTS UNDER ARUBAN LAW

Several requirements apply

Article 6:162 section 1 of the Aruba Civil Code (Aruba CC) stipulates four conditions for someone’s obligation to compensate damage based on an unlawful act (tort):

  • A person has committed an unlawful act (‘onrechtmatige daad’) against another person; and
  • The act can be attributed (‘toegerekend’) to that person; and
  • Some other person has suffered damage (‘schade’); and
  • The unlawful act has caused these damages (‘causaal verband’).
  • Article 6:163 Aruba CC provides for an exception to the general rule of article 6:162 Aruba CC: “There is no obligation to repair damage when the violated norm does not have …
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    13
    Jun 2009
    CATEGORY

    Legal

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    TRANSACTIONAL POWER OF THE MANAGING BOARD OF A DUTCH CARIBBEAN CORPORATION (II)

    Only corporations may plead absence of representative authority

    Under the Netherlands Antilles Corporate Code, i.e. Book 2 of the Civil Code, transactions with third parties that violate either the law or any limitations on the transactional powers of the board of directors of a corporation, are not enforceable against the corporation if the limitations are properly disclosed at the trade register. According to Article 2:10(3) Netherlands Antilles Civil Code only corporations may plead the absence of representative authority.

    A counterparty wishing to withdraw from a legal act on that ground, may only rely on the fourth paragraph of Article 2:10 …
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    30
    May 2009
    CATEGORY

    Corporate

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    TRANSACTIONAL POWER OF THE MANAGING BOARD OF A DUTCH CARIBBEAN CORPORATION (I)

    Limitations must be disclosed to have effect

    Netherlands Antilles law provides that, subject to restrictions laid down by the Netherlands Antilles Corporate Code or a corporation’s articles of association, the board of directors of a corporation shall be competent to represent the corporation, e.g. a limited liability company (‘naamloze of besloten vennootschap’; NV or BV). In the event of several managing directors, any managing director shall be competent, insofar as not otherwise provided for by the articles of association. 

    Under Netherlands Antilles law, information required to be disclosed pursuant to the Civil Code, for instance (i) the identities of the …
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    26
    May 2009
    CATEGORY

    Corporate

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