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

COMMENTS No Comments

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

COMMENTS No Comments

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

COMMENTS No Comments

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

COMMENTS No Comments

FILE SHARING IN THE DUTCH CARIBBEAN

Internet service providers should act prudently regarding claimed copyright infringement

File sharing, as is commonly understood, involves distributing or providing access to electronically stored data. One, if not the most, popular way to do this is through the use of so-called (distributed) peer-to-peer (P2P) networking programs. The rising popularity of music formats such as mp3 (a format for the compression of audio data) has led to the release and growth of software designed to make the sharing of electronic data relatively easy.

One of the legal issues involved with file sharing is that the shared data may (wholly or partially) …
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04
Jul 2009
CATEGORY

Legal

COMMENTS No Comments

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

COMMENTS No Comments

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

COMMENTS No Comments

STATUTORY LIMITATIONS FOR FILING A CLAIM UNDER ARUBAN LAW

Five year period

With respect to the limitations under Aruban law for filing a claim, the pertinent legal provisions governing limitations are set out in Book 3, Title 11 (Rights of Action) of the Aruban Civil Code.

According to Article 310 the right of action for compensation for damage is prescribed up to the end of a five year period from the beginning of the day following the one on which the person who is prejudiced becomes aware of both the damage and the identity of the person responsible for it.

If an accident occurred on August 1, 2004, for …
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23
May 2009
CATEGORY

Legal

COMMENTS No Comments

SPOTLIGHT ON CURACAO

Curacao economic country survey inserted in the New York Post

In May 2009, United International Press (UIP) issued a special bulletin on Curacao, the Netherlands Antilles, in an insert in the New York Post. UIP has also placed the bulletin on its website. Curacao is described as a Caribbean Hub with Investment Appeal. Amongst various government institutions and businesses, Spigthoff Attorneys & Tax Advisers is also mentioned (click here).

According to its website,

“United International Press is a media agency specialized in the production of comprehensive economic country surveys inserted in the New York Post. …
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20
May 2009
CATEGORY

Various

COMMENTS No Comments

WHAT DAMAGES ARE RECOVERABLE UNDER ARUBAN LAW? (II)

Case law

The Supreme Court in its case law has held that relatives of a deceased person are only entitled to sue for damages against the person liable for his or her death, if and to the extent that their death has left them in need. The extent of need is measured by the standard of living of the surviving relatives during the life of the deceased. See, for example, Supreme Court dated December 13, 1985 and Supreme Court dated February 28, 1986. This rule may be considered one of the fundamental principles and values of the Aruban legal system, …
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18
May 2009
CATEGORY

Legal

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WHAT DAMAGES ARE RECOVERABLE UNDER ARUBAN LAW? (I)

Nature and extent determined by the Civil Code

When considering the nature and extent of damages that are recoverable under Aruban law, the point of departure is Book 6, Title 1 (Obligations in General), Section 10 (Legal Obligations to Make Reparation of Damage), Article 95 of the Aruban Civil Code which states: ‘the damage which must be repaired pursuant to a legal obligation to make reparation consists of material damage and other harm (i.e., immaterial damage), the latter to the extent that the law grants a right to reparation thereof’.

Pursuant to Article 96, Paragraph 1, material damage comprises both …
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16
May 2009
CATEGORY

Legal

COMMENTS No Comments

THE RIGHT TO SHARE IN THE PROFITS OF THE ARUBA COMPANY WITH LIMITED LIABILITY

It is not necessary to give all shares a right to share in the profits

On January 1, 2009 the new Aruba Ordinance on the company with limited liability (vennootschap met beperkte aansprakelijkheid; VBA) became effective. This legislation gives shareholders far more freedom to organize their company than in the past

It is not necessary to give all shares a right to share in the profits (Section 38 par. 5 Ordinance). If shares have a par value, it is obvious that the right to share in the profits is related to that value. If there are shares with different par …
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07
Apr 2009
CATEGORY

Corporate

COMMENTS No Comments