ELECTRONIC TRANSACTIONS IN THE DUTCH CARIBBEAN
A digital signature has the same legal effect as a hand-written signature
The Ordinance on agreements concluded electronically (‘Landsverordening overeenkomsten langs elektronische weg’) became effective on 1 January 2001.
Trade, financial services and other commercial activities are being conducted electronically at a rapidly growing rate. The Netherlands Antilles was ahead of many countries in developing legislation for this field.
The Ordinance provides that an electronic signature shall have the same legal effect as a hand-written signature, and may be admitted as evidence in legal proceedings. An electronic signature is described as electronic data which are attached to or have a …
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AESX PLATFORMS ANNOUNCES LAUNCH OF WEST AFRICA SUSTAINABLE ECONOMIC INITIATIVE
The Alternative Electronic Stock eXchange has created a specialty exchange for sustainable (financial and social) investing, the MicroFinance Exchange MFDAQ.
The MicroFinance Exchange announced yesterday (20 May 2008) the availability for subscription of the first social enterprise to seek capital through the Exchange.
The West Africa Sustainable Economic Initiative (WASEI) is the brainchild of former Grameen Financial Officer Linda Yahr, supported by an impressive team whose mission is to create a “ladder of prosperity” to “bottom of …
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COMPLIANCE IN THE DUTCH CARIBBEAN
Curacao considers how the US deals with compliance
Compliance is essentially about systems and procedures at corporations, banks, funds, trust offices, insurance companies and the like, to ensure that their officers and employees are aware of and take steps to comply with the relevant laws and regulations. It is also referred to as ‘regulatory compliance’. Compliance is nowadays, in the aftermath of, Enron, for example, which collapsed in 2001, of the utmost importance. I will briefly discuss several compliance related issues below, however one should keep in mind that the concept of compliance is extremely broad.
The …
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FILING FOR BANKRUPTCY IN THE DUTCH CARIBBEAN
The ultimate recourse against a person not paying his debts
The bankruptcy order can be applied for either by the debtor or by one or more of its creditors. If the debtor is a company then, pursuant to Article 2:8 par. 4 of the Civil Code, the managing directors do not have the authority to file a petition for bankruptcy of the company without prior authorization thereto from the general meeting, unless otherwise stipulated in the articles of association.
The pre-requisites for issuing an order upon an application for bankruptcy, regardless of whether the application is submitted by the debtor …
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DUTCH CARIBBEAN HEDGE FUNDS
Curacao provides a favorable climate for hedge funds
Curacao, part of the Netherlands Antilles, currently provides a favorable tax, legal and regulatory climate for hedge funds. A fund vehicle can be established quickly and flexibly. Additionally, the current regulatory regime for the supervision of investment institutions and administrators and the anti-money laundering rules provide comfort for investors. In Curacao one can discuss with the tax authorities in advance what at arms’ length remuneration will be acceptable. A tax-exempt vehicle and several very low-tax vehicles are available for hedge funds.
There is no requirement from the point of view of corporate …
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DUTCH CARIBBEAN BUSINESS LICENSES
Citizens versus non-citizens
According to the Netherlands Antilles Ordinance on the Establishment of Businesses (‘Landsverordening betreffende vestiging van ondernemingen’, PB 1946 nr. 43) a license is required to establish a company (‘vestigingsvergunning’). A further license is required to operate one as an individual director if one is not a citizen of the Netherlands Antilles (‘directievergunning’).
According to a policy document published by the Department of Economic Affairs (‘Dienst Economische Zaken’) in Curacao that is responsible for the enforcement of aforementioned Ordinance, a person is considered a citizen of the Netherlands Antilles if born in the Netherlands Antilles, …
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DUTCH CARIBBEAN ANTI-MONEY-LAUNDERING REGULATIONS (II)
Filing MOT report no blanket protection
A provider of financial services, e.g. a bank, has the obligation under Section 11 of the MOT (National Ordinance Penalization Money Laundering) to report to the Financial Intelligence Unit (FIU), without delay, any unusual transaction made or proposed. Unusual transactions are described in the Ministerial Decree Indicators Unusual Transactions.
Suspected money-laundering transactions are, e.g., transactions non-typical of a client or transactions where there is otherwise cause to presume that they may relate to money laundering or terrorist financing. Such transactions, including proposed transactions, should be reported. The MOT also allows for permissive filings by …
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DUTCH CARIBBEAN ANTI-MONEY-LAUNDERING REGULATIONS (I)
An overview
Important Netherlands Antilles anti-money-laundering regulations include the National Ordinance Penalization Money Laundering (‘Landsverordening Strafbaarstelling Witwassen van Geld’, ‘NOML’) which criminalizes money laundering, and the National Ordinance on the Reporting of Unusual Transactions (‘Landsverordening Melding Ongebruikelijke Transacties’, ‘MOT’). The latter requires anybody who offers financial services to report, without delay, any ‘unusual transactions’ to the Financial Intelligence Unit (‘Meldpunt Ongebruikelijke Transacties’).
Non-legislative regulations, such as the Provisions and Guidelines on the Detection and Deterrence of Money Laundering and Terrorist Financing for Credit Institutions (‘Guidelines’), issued by the Central Bank of the Netherlands Antilles are also relevant. These state that …
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PROTECTING ONES ASSETS IN A TAX FRIENDLY ENVIRONMENT
Dutch Caribbean as the jurisdiction of choice
There are millions of people around the world who can be called wealthy. Many of them want to protect their wealth, against political instability, for example. To do so they can choose among various jurisdictions.
The Netherlands Antilles (a.k.a. the Dutch Caribbean) is a jurisdiction of choice one should definitely consider. There are several reasons why the Netherlands Antilles is already the favorite jurisdiction for so many people. One reason is that it is part of the Dutch Kingdom, which is known for political stability. The fact that the Dutch Supreme Court in …
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ORDINARY VERSUS SUMMARY PROCEEDINGS IN THE DUTCH CARIBBEAN
Interlocutory or summary proceedings provide for immediate relief
Article 110 of the Netherlands Antilles and Aruba Code of Civil Procedure (‘the Code’) provides that all adversarial proceedings shall be initiated by means of a petition to the court of first instance. Proceedings so initiated are ordinary proceedings a.k.a. proceedings on the merits.
A petitioner may opt for preliminary relief proceedings (a.k.a. interlocutory proceedings; ‘kort geding’). Article 226 of the Code provides that in urgent cases which require an immediate decision, the plaintiff may request a provisionally enforceable judgement (‘beslissing bij voorraad’).
Article 229 of the Code provides that a provisional …
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THE SUPREME COURT OF THE KINGDOM OF THE NETHERLANDS IN CIVIL PROCEEDINGS
It serves the whole Kingdom
The Kingdom of the Netherlands is comprised of three separate jurisdictions, the Netherlands (i.e.: the part of the Kingdom located in North Western Europe), the Netherlands Antilles and Aruba. The Netherlands Antilles and Aruba have their own code of civil procedure, which in certain respects is similar, but not identical to the Dutch Code of Civil Procedure. The Supreme Court of the Netherlands also serves as the Supreme Court of the Netherlands Antilles and Aruba.
The Netherlands Antilles and Aruba have courts in the first instance (‘Gerecht in Eerste Aanleg’) and a joint court of …
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STANDARDS OF DUE PROCESS IN THE NETHERLANDS ANTILLES AND ARUBA
The Supreme Court applies strict standards
The European Convention for the Protection of Human Rights and Fundamental Freedoms (‘EVRM’), including Article 6, which safeguards the right of due process, applies to the standards of due process applicable in the Netherlands Antilles and Aruba.
Article 6, first sentence, EVRM, reads as follows: “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”. The requirement of a ‘fair hearing’ has been consistently interpreted by …
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