TYPES OF LIABILITY IN CURACAO
A three-part distinction
With regard to liability a three-part distinction can be made. The first distinction relates to the basis of the liability: liability pursuant to a contractual relationship (the attributable failure in this respect) and liability pursuant to a wrongful act.
Another distinction relates to the personal liability (thus for the party’s own actions or omissions) and vicarious and/or strict liability: liability for or the acts and omissions of others (vicarious liability) or liability for certain things that happen (strict liability).
For example, employers can be held vicariously liable for certain actions of their employees. According to the Curacao …
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CURACAO CREDIT INSTITUTIONS
Prudential supervision
The Curacao regulatory legislation applicable to credit institutions provides for requirements with regard to the prudential supervision in general. Such prudential supervision sees to the liquidity and solvency position of a bank without going into further detail for instance as to the safekeeping of assets or maintaining of accounts of third parties.
The Curacao legislation provides for reporting requirements that need to be submitted to the Central Bank of Curacao and St. Maarten (CBCS). However, these requirements apply only to banks regulated in Curacao.
On the basis of such reports and accounts the CBCS has the authority to …
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CURACAO FUNDS AND ADMINISTRATORS
Statutory requirements applicable to the organizational and legal structure
The National Ordinance on the Supervision of Investment Institutions and Administators (Landsverordening regelende het toezicht op beleggingsinstellingen en administrateurs; NOSIIA) provides for a regime of supervision for investment institutions and administrators with the objective of an adequate operation of the financial markets and the protection of investors in such markets.
With regard to the business operation of a local fund that operates within the scope of the NOSIIA it provides for requirements applicable to the organizational and legal structure as expressed in the fund’s constitutive documents. Such requirements address the conditions …
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SEMINAR ONDERNEMINGSRECHT
22, 23 en 24 oktober 2012
Het ondernemingsrecht is continu in beweging. Hier bij ons in Curacao, maar ook in Nederland. Boek 2 van het Burgerlijk Wetboek Curacao is op 1 januari 2012 op tal van punten gewijzigd. Wat houden deze wijzigingen precies in? Wat betekent de invoering van de Flex-BV in Nederland per 1 oktober 2012 voor Curacao?
Denk wat Curacao betreft bijvoorbeeld ook aan de invoering van een integrale regeling inzake het enqueterecht per 1 januari 2012. Het is nu mogelijk om het Hof van Justitie een of meer onderzoekers te laten benoemen om onderzoek naar (vermeend) wanbeleid …
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THE TRANSFER OF BEARER BONDS IN THE DUTCH CARIBBEAN
No deed required
Under the laws of the Dutch Caribbean (Aruba, Bonaire, Curacao, St. Maarten) transferring the title of bearer bonds (i.e. bonds which are owned by whoever is holding them, rather than having a registered owner) does not require a transfer deed. In other words: such a bond is transferred by surrendering the original document. The transfer of ownership is thus accomplished simply by the transfer of said document.
Under Dutch Caribbean international private law, the general rule is that the ‘lex rei sitae’ determines who holds legal title to movable assets (such as bearer bonds) and whether and …
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CIVIL PROCEEDINGS IN CURACAO
Information for foreign plaintiffs
Are there any particular issues that concern foreign plaintiffs in Curacao? If proceedings on the merits are initiated by a non-resident plaintiff, the defendant may ask the court to order that the plaintiff provide security for damages, costs and interest which it might be liable to pay as a result of the judgment in aforementioned proceedings. This ‘cautio judicatum solvi’ does not apply if there is a Convention (Treaty) on legal proceedings between Curacao and the plaintiff’s country.
Can attorney costs for legal proceedings be recovered? Generally speaking, each party has to bear its own attorney …
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INADEQUATE CAPITALIZATION OF A CURACAO COMPANY
Liability for thin-capitalization?
A shareholder is not personally liable for acts performed in the name of the company and is not liable to contribute to losses of the company in excess of the amount which he must pay to the company as contribution for his shares.
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. In almost all jurisdictions, undercapitalization as such is …
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GOVERNMENT AND CORPORATE GOVERNANCE (V)
Government drafted model articles of association
The first model articles of association date from March 15, 2011.
For criticism see: K. Frielink, Visie Land op overheids-NV’s verkeerd [Vision Country on government-owned NVs incorrect], Antilliaans Dagblad 15 April 2011, p. 16 and M.L. Alexander, F.B.M. Kunneman, L.G. Santine and R.J. in ’t Veld, Modelstatuten ten sterkste afgeraden [Model articles of association strongly discouraged], Antilliaans Dagblad 20 September 2011, p. 14-15. See also K. Frielink, Stop politieke benoemings- en ontslagcarrousel [Stop politicial appointment and dismissal merry-go-round], Antilliaans Dagblad 14 September 2010, p. 14-15.
In the meantime, the models for …
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GOVERNMENT AND CORPORATE GOVERNANCE (IV)
Code Corporate Governance Curacao
On January 1, 2010, the National Ordinance regarding corporate governance came into effect. Based on this the Code Corporate Governance Curacao came into being, that also came into effect on January 1, 2010. In it, reference is still made to the Executive Council and the island territory of Curacao, but as from October 10, 2010 these are understood to mean the government of Curacao and the Country Curacao.
The National Ordinance does not only undertake to establish a corporate governance code, but also to implement the Code in the government-owned companies. In 2011, this implementation obligation …
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GOVERNMENT AND CORPORATE GOVERNANCE (III)
The government is not automatically an ‘ordinary’ shareholder
It is obvious that in a small community such as that of Curacao, with only a limited choice when it comes to directors and supervisory directors to be appointed, and in which (family, social) networks seem to play an important role in making choices, there is a field of tension. It is even more important therefore that government has a clear vision regarding its shareholdership and that there are good and transparent procedures, e.g. regarding the appointment of directors and supervisory directors.
Does the obligation exist for the government to, briefly stated, …
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GOVERNMENT AND CORPORATE GOVERNANCE (II)
Government (not) at a distance?
Being a director of a government-owned company is certainly not always as easy. Neither is being a shareholder in a government-owned company. The directors will usually complain about too much influence from politicians, while the politicians will usually find that they have too little grip on government-owned companies. In this connection, there are two important topics we will have to consider briefly.
I will ignore cultural aspects here. In that respect see e.g. chapter 8 of the dissertation of A. van Marrewijk, Internationalisation, cooperation and ethnicity in the telecom sector, Delft: Uitgeverij Eburon 1999, 340 …
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GOVERNMENT AND CORPORATE GOVERNANCE (I)
For Hobbes, it is certain that there must be a sovereign
According to Thomas Hobbes we all have natural passions that carry us to, among other things, partiality, pride, and revenge. The laws of nature, as Hobbes sees them, including ‘justice’, ‘equity’, ‘modesty’, and ‘mercy’, are contrary to our passions. Therefore, we will only observe the laws of nature if we have fear of some power to cause them to be observed. According to him, covenants, without the sword, are but words that lack every strength to protect a person.
See Thomas Hobbes, Leviathan, Amsterdam: Boom 2007, p. 207 and …
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