MY VIEW ON THE LIABILITY OF A CURACAO TRUSTEE

The Reference Trustee

The trust originates from Anglo Saxon law. On designing the Curacao trust system the systems in other jurisdictions have obviously been studied. However, the Curacao trust is a civil law and not a common law trust. Therefore in answering the question of the (possible) extent of the liability as given shape in Book 3 Curacao Civil Code (‘CCC’), a connection should be sought with the law of Curacao (and elsewhere in the Kingdom) and not with foreign legal systems.

The fact that the Trustee has a position of trust, as laid down by law, does not, according …
Read the rest »

15
Nov 2012
CATEGORY

Legal

COMMENTS No Comments

CURACAO TRUSTEE HAS A DUTY OF CARE

Trustee is liable if he fails to exercise due care

A duty of care is justified in those cases where someone entrusts his financial or other interests to another or takes care of these himself with the assistance of the other, particularly because that other possesses more knowledge and experience in that field. The law formulates as a general standard that the Trustee is liable if he fails to exercise due care as a good Trustee unless he cannot be blamed for the failure (Section 3:143 subsection 1 Curacao Civil Code {‘CCC’}). This relates to a duty arising from the …
Read the rest »

08
Nov 2012
CATEGORY

Legal

COMMENTS No Comments

THE CURACAO TRUSTEE

Breach of trust results in liability

Usually a Curacao trust office (service provider) uses one of its own public limited liability companies (NVs) or private companies with limited liability (BVs) to provide the services. This in-house NV or BV will then for instance become the managing director of the client company. A trust office offering services as a Trustee will usually also do this in the form of an in-house NV or BV who will act as the Trustee. The Trustee will be able to fulfill this role with regard to multiple trust assets.

For third parties it is important …
Read the rest »

01
Nov 2012
CATEGORY

Legal

COMMENTS No Comments

POWERS AND OBLIGATIONS OF A CURACAO TRUSTEE

Brief summary

On 1 January 2012, new legalization entered into force pursuant to which it is now possible to set up a trust, similar to the trust in Anglo-Saxon common law jurisdictions, in Curacao (a civil law jurisdiction).

Here follows a brief summary of several of the powers and obligations of a Trustee:

  • the Trustee is entitled and obliged to administer the trust assets with regard to which he is obliged to render account (Section 3:127 subsection 2 under c Curacao Civil Code [‘CCC’]);
  • the Trustee is obliged to administer the trust assets according to the law and the provisions …
    Read the rest »
  • 25
    Oct 2012
    CATEGORY

    Legal

    COMMENTS No Comments

    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 …
    Read the rest »

    18
    Oct 2012
    CATEGORY

    Legal

    COMMENTS No Comments

    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 …
    Read the rest »

    12
    Oct 2012
    CATEGORY

    Legal

    COMMENTS No Comments

    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 …
    Read the rest »

    05
    Oct 2012
    CATEGORY

    Finance

    COMMENTS No Comments

    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 …
    Read the rest »

    21
    Sep 2012
    CATEGORY

    Corporate

    COMMENTS No Comments

    INTERNATIONAL CREDIT INSTITUTIONS IN CURACAO

    Banking business abroad

    Credit institutions (banks) in Curacao are subject to the National Ordinance on the Supervision of Banking and Credit Institutions 1994 (the NOSB). The NOSB makes a distinction between ‘credit institutions’ and ‘international credit institutions’. The NOSB defines a credit institution as an institution that to an important extent makes its business of:

  • the solicitation of repayable funds (“deposits”, whether term deposits or deposits which are repayable on demand, whether or not savings deposits, whether or not against issue of debt instruments); and
  • granting credit for its own account.
  • An ‘international credit institution’ is defined as a credit …
    Read the rest »

    13
    Sep 2012
    CATEGORY

    Legal

    COMMENTS No Comments

    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 …
    Read the rest »

    25
    Aug 2012
    CATEGORY

    Legal

    COMMENTS No Comments

    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 …
    Read the rest »

    21
    Jun 2012
    CATEGORY

    Corporate

    COMMENTS No Comments

    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 …
    Read the rest »

    14
    Jun 2012
    CATEGORY

    Corporate

    COMMENTS No Comments