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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07
Jun 2012
CATEGORY

Corporate

COMMENTS No Comments

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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31
May 2012
CATEGORY

Corporate

COMMENTS No Comments

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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24
May 2012
CATEGORY

Corporate

COMMENTS No Comments

CURACAO COURT INTERVENES IN POLITICAL APPOINTMENT

Political appointments unacceptable

The Court of First Instance of Curacao passed judgment on 23 January 2012 in the case of Selikor N.V. versus Drs. Ivar Asjes (JOR 2012, 105). This case is a follow-up to the judgment of the Joint Court of Appeal of the Netherlands Antilles and Aruba of 10 August 2010, JOR 2010, 296. In a nutshell the case boils down to Asjes being appointed as the managing director of waste processor Selikor N.V., but that this is an appointment pushed through politically without an open job application procedure. This deprived at least six of Selikor’s members of …
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12
May 2012
CATEGORY

Corporate

COMMENTS No Comments

INQUIRY PROCEDURE IN CURACAO

Important court decision for the local trust practice

On 30 March 2012 the first petition for an inquiry procedure under the new law was dealt with by the Joint Court of Justice of Aruba, Curacao and St. Maarten, and of Bonaire, St. Eustatius and Saba. Karel Frielink and Dinesh Mishre had the honor of acting as lawyers for the defense … and with success! This decision is very important for the companies in Curacao and especially for the local trust offices.

As of 1 January 2012 the amended Corporate Code (Book 2 Civil Code) of Curacao entered into force. The …
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02
May 2012
CATEGORY

Corporate

COMMENTS No Comments

BANKING SUPERVISION IN CURACAO AND SINT MAARTEN

Prudential rules and requirements

The Central Bank of Curacao and St. Maarten is responsible for the care of the financial system’s health, effected through on and off site inspections of the banking and other financial institutions authorized to operate in Curacao and St. Maarten.

The National ordinance on the supervision of banks and 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.

The legislation provides for reporting requirements that need to be submitted to the Central Bank of Curacao and St. Maarten. On …
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23
Apr 2012
CATEGORY

Legal

COMMENTS No Comments

SURPRISE RULING BY SINT MAARTEN COURT

Court introduces non-statutory transfer of employees

In the Netherlands (the European part of the Kingdom), when an undertaking (onderneming) is transferred from one person or entity to another, by operation of law the employees have an employment relationship with the new owner on the terms and conditions agreed with the old employer. For example, such a transfer of the employment relationship may occur in the case of a take-over or merger. Following the transfer, the new owner must respect all existing employment terms and conditions, including the terms of any applicable collective labor agreement. In principle, the rules with respect …
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04
Apr 2012
CATEGORY

Legal

COMMENTS No Comments

ASSIGNMENT OF RECEIVABLES IN CURACAO

Notification no longer necessary for perfection of assignment

Under Curacao law the transfer of ownership requires transfer of title (levering) pursuant to a valid legal title (geldige titel) by a person who has the power of disposal over the asset (beschikkingsbevoegheid) being transferred. The rules on transfer of title (levering) are equally applicable to the creation of a right of pledge over receivables. Until recently, the Curacao Civil Code, allowed for the following two methods of transfer of title (levering) of receivables:

  • By means of a deed of assignment (cessie) signed by the assignor and assignee or by the assignor …
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  • 04
    Apr 2012
    CATEGORY

    Legal

    COMMENTS No Comments

    REGULATORY LEGISLATION IN CURACAO

    General requirements on the business operation

    Regulatory legislation in Curacao does not distinguish between different kinds of products, such as for instance hedge funds, but is of a more general nature. The regulatory legislation of Curacao applicable to financial institutions is divided into four categories being: credit institutions, institutional investors, investment institutions & administrators and trust service providers.

    The authority entrusted with the supervision on the financial institutions mentioned above is the Central Bank of Curacao and Sint Maarten.

    The regulatory legislation does provide for general requirements on the business operation of the financial institutes involved. The National Ordinance on …
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    12
    Mar 2012
    CATEGORY

    Finance

    COMMENTS No Comments

    CURACAO TRUST LEGISLATION

    Entered into force on 1 January 2012

    On January 1st 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. This trust is a legal exception to the paritas creditorum rule as we know it and serves as an important instrument which could be used for asset segregation purposes.

    With the introduction of the Curacao Trust and the new paragraph 3 to section 231 of Book 3 of the Curacao Civil Code the need for a parallel debt construction in the …
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    29
    Feb 2012
    CATEGORY

    Finance

    COMMENTS No Comments

    PARALLEL DEBT IN CURACAO

    New legislation

    It has become market practice in Curacao, and also in the Netherlands, to create a separate (parallel) obligation, owed by the borrower (or guarantor) to the security agent in its own name, on the terms and in an amount equal to the original (principal) obligations owing by the borrower (or guarantor) to the lenders.

    The security rights are then granted to the security agent in its own name to secure the parallel debt. This “parallel debt” structure is usually reflected in the facility agreement and gives the security agent an own and independent right to demand payment by …
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    18
    Feb 2012
    CATEGORY

    Finance

    COMMENTS No Comments

    ON THE GERMAN – DUTCH CARIBBEAN RELATIONSHIP

    Interesting editorial in The Daily Herald (St. Maarten)

    Economic powerhouse

    “The visit of German ambassador Heinz-Peter Behr last week should serve as an eye-opener on the largely untapped possibilities that European market offers. Up to now much of the attention regarding the “Old Continent” understandably regards the Netherlands and France from which “The Friendly Island” also has direct airlift, but Germany as Europe’s economic powerhouse and surrounding nations hold great tourism potential.

    Curacao managed to attract Air Berlin flights recently and already has noticed a marked increase in the number of visitors from that part of the …
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    14
    Feb 2012
    CATEGORY

    Various

    COMMENTS No Comments