COVENANTS NOT TO COMPETE IN THE DUTCH CARIBBEAN
Such covenants are null and void
A non-competition clause, a.k.a. a covenant not to compete, is a stipulation between the employer and the employee whereby the latter is restricted in his right to work in a given way upon termination of the latter’s contract of employment. Typically, a non-competition clause will prohibit an employee from seeking employment, or being directly or indirectly involved in the same type of industry or business conducted by another employer. According to the laws of the Netherlands Antilles, any non-competition clause related to an employment contract is null and void and thus not enforceable. This …
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DECLARING DIVIDENDS IN THE DUTCH CARIBBEAN
Resolutions only marginally examined by the court
Directly connected to the approval of annual accounts, the general meeting of the NV (or BV, as the case may be) or any other body designated in the articles of incorporation, shall resolve the distribution or reservation of profits according to aforementioned annual accounts and the payment of any other distributions flowing from the equity capital as apparent from the annual accounts. The general meeting, or any other body designated in the articles, may resolve to pay interim distributions for the account of the current financial year or for the account of a …
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PROVIDING INFORMATION TO THE DUTCH CARIBBEAN TAX INSPECTOR
Digital information is not sufficient
In general every company is obliged to supply the Tax Inspector with data and information that is or can be significant for levying taxes from that company. Regarding the aforementioned all data carriers or their content have to be made available at the request (and discretion) of the Tax Inspector.
Digital versions of the data and information do not represent sufficient compliance with this obligation. If there are only digital documents available (like e-mails), then the taxpayer must ensure that the Tax Inspector is able to read such data during the legal period that the …
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CHURANDY MARTINA WINS SILVER ON 200M IN BEIJING, BUT…
was wrongly disqualified
On 20 August 2008, Churandy Martina won the silver medal in the 200 metres at the Olympics behind Usain Bolt in 19.82 seconds, the first time he had run sub-20s. He was the first medal winner for the Netherlands Antilles after Jan Boersma won silver in sailing at the 1988 Summer Olympics in Seoul.
But Churandy Martina later was disqualified after the U.S. team protest that he had run out of his lane. However, the Netherlands Antilles has appealed to the Court of Arbitration for Sport (CAS) in Lausanne to restore …
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DUTCH CARIBBEAN PRIVATE INTERNATIONAL LAW
The legal effects doctrine: an exception to the lex loci delicti rule
Under Dutch Caribbean rules of private international law, a claim arising from an unlawful act is governed, in the absence of a choice of jurisdiction by the parties, by the law of the country were the unlawful act was committed (lex loci delicti). However, this rule may possibly not apply if the tortfeasor and the injured party are both residing in a country other than that where the unlawful act was committed and if the legal effects occur entirely in the other country. This is the so-called legal …
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INADEQUATE CAPITALIZATION IN THE DUTCH CARIBBEAN
Liability for thin-capitalization?
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.
Shareholders of a company in the Netherlands Antilles are under an obligation to pay to the company what is due with respect to the shares, i.e. the shareholder’s capital contribution, and such contribution may not be withdrawn without due process. This is the only financial obligation of a shareholder towards the …
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PRE-EMPTION RIGHTS IN THE DUTCH CARIBBEAN
Prevent a shareholder from dilution
According to article 2:106 of the Netherlands Antilles Civil Code shareholders have a pre-emption right on the issue of new shares, being the right to be offered any new issue in each class, pro rata to the number of shares of such class held by them. The pre-emption right is intended to protect the interests of shareholders and to prevent their stake from being diluted.
According to the Civil Code there are three ways to limit the pre-emption rights of the shareholders:
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DUTCH SAME-SEX COUPLES HAVE THE SAME RIGHTS AS OPPOSITE-MARRIED COUPLES IN THE DUTCH CARIBBEAN
Spigthoff represented plaintiff
According to a recent court ruling in the Netherlands Antilles (Court of First Instance, 17 July 2008), a same-sex couple that was married in the Netherlands and subsequently moved to the Netherlands Antilles (Curacao), has the same rights under Netherlands Antilles law (or Aruban law as the case may be) as Netherlands Antilles opposite-married couples as far as health insurance is concerned. Dr. Douwe Boersema of Spigthoff Attorneys & Tax Advisers on Curacao represented the couple.
Same-sex couples have been able to marry in the Netherlands for the last seven years. However, Aruba and the …
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THE FINANCIALS OF A DUTCH CARIBBEAN COMPANY
Management’s responsibility
According to Netherlands Antilles law, annually, within eight months after the company’s financial year has ended, (unless this term has been extended by the general meeting) annual statements must be drawn up by the management board and submitted to the general meeting of shareholders. The annual statements, comprising the balance sheet, profit and loss account and an explanatory statement, should be signed by all the directors.
The annual statements should be approved by the general meeting of shareholders. Said meeting can and, when this is prescribed by the articles of association, shall appoint an expert to regularly supervise the bookkeeping and to report to …
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HEALTH INSTITUTIONS IN THE DUTCH CARIBBEAN
Quality of health care is regulated
Secondary health care in the Netherlands Antilles is provided in hospitals. There are seven hospitals on Curaçao, with a total of 1,187 beds, 46% of them in the Sint Elizabeth Hospital (Sehos) and 16.9% in various specialized institutes for the disabled and drug addicts.
The Netherlands Antilles National Ordinance on Health Institutions (NOHI) provides rules for governing institutions providing healthcare in the Netherlands Antilles. The definition of health care institutions in the NOHI is very broad.
The NOHI regulates, amongst others, (i) the establishment of healthcare providers in the Netherlands Antilles; …
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MORATORIUM OF PAYMENTS IN THE DUTCH CARIBBEAN (II)
The debtor may make an offer of composition
The nature of a Netherlands Antilles’ moratorium differs substantially from a moratorium under US law and does, in particular, not cause pending proceedings to be stayed. Generally, a moratorium in the Netherlands Antilles protects a debtor from claims existing at the time of the moratorium. It does not prevent litigating such claims, but judgments obtained cannot be enforced.
During a moratorium, the creditor is prevented from enforcing ordinary agreements against the party to which the moratorium is granted. Instead, creditors may file their claims with the administrator in the moratorium. If the performance of the …
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SECURITY RIGHTS AND DUTCH CARIBBEAN INTERNATIONAL PRIVATE LAW
Foreign security rights may be valid and enforceable
According to Netherlands Antilles law, the question as to whether or not a security right may be created in a certain receivable must be determined according to the law governing that receivable. Netherlands Antilles international private law determines that the law that governs the receivable is the law that governs the underlying contract of the receivable.
However, if the minimum requirements of a Netherlands Antilles security right have been met, a foreign law governed security right may be valid and enforceable, as if it were a Netherlands Antilles security right.
It is not decisive whether or …
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