STANDARDS OF DUE PROCESS APPLICABLE IN THE DUTCH CARIBBEAN
The Supreme Court applies strict standards
In respect of the standards of due process applicable in the Netherlands Antilles and Aruba, the European Convention for the Protection of Human Rights and Fundamental Freedoms (EVRM) applies, including article 6, which safeguards the right of due process.
The first sentence of article 6 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 …
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THE DUTCH CARIBBEAN INCORPORATION DOCTRINE
The courts apply the law of the state where the legal entity was incorporated
The Netherlands Antilles adheres to the Incorporation Doctrine (Netherlands Antilles State Ordinance of 9 September 1960, which entered into force on the 10th of September 1960, P.B. 1960, 166). According to this doctrine, the internal affairs of a corporation are governed solely by the laws of the state in which it was formally incorporated. This doctrine was confirmed in the cases of Natco Trust v. mr Thesseling q.q., Hoge Raad (Dutch Supreme Court) 20 April 1990, NJ 1991, 560; TAR-Justicia 1 (1991), p. 24-35, and IBC …
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NON-POSSESSORY PLEDGE UNDER THE LAWS OF ARUBA
A non-possessory pledge requires a deed
Security rights are an important issue, especially in financing transactions. A company may, for example, guarantee the obligations of another company under a certain loan facility. There are several alternatives, one of which will be discussed here.
Under the laws of Aruba there are several kinds of pledges, in particular, the possessory and the non-possessory pledge. In the case of a possessory pledge, the physical control of the assets concerned will be transferred from the owner/borrower to the bank/lender.
In the case of a non-possessory pledge, regarding for example registered shares, the pledge is …
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SCANNED EVIDENCE UNDER THE LAWS OF THE DUTCH CARIBBEAN
Electronic files will not be disregarded as evidence
A Netherlands Antilles or Aruban court may only base its decision on facts. An alleged fact that is not disputed by the parties is considered to be such a fact, even if it does not correspond with reality. For example, if both parties state that they were involved in a fight in Curacao, the court will assume the correctness thereof, although both parties know that the fight was actually in Bonaire. Furthermore, facts can be proven in the course of the proceedings, e.g., by showing the court an official extract of a …
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DIRECTORS’ LIABILITY IN THE DUTCH CARIBBEAN
Personal and several liability
The members of the Board of Directors are personally and severally liable towards the NV (or BV, as the case may be) for any loss caused by the improper performance of duties. Each member of the Board who proves that he cannot be blamed for such improper performance and that the activities concerned fall outside the scope of activities addressed to him, and that he has not been negligent in taking steps to avert the related consequences, is not liable (Article 2:14 Section 4 Netherlands Antilles Civil Code; NACC). Therefore, a division of tasks among such …
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SEE YOU IN COURT?
Arbitration as an alternative for settling disputes in Curacao
Parties with a legal dispute can turn to the public court system to settle the dispute; however, instead of bringing a lawsuit in a public court, they can also opt for arbitration. Arbitration is a form of private dispute settlement in which the parties instruct one or more persons (arbitrators) to render a binding decision on their dispute. The arbitrators may be jurists, but they can also be laypersons. People with specific expertise or experience in a certain branch or industry are often chosen as arbitrator.
Parties …
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CELEBRATING THE 5TH ANNIVERSARY OF THIS WEBLOG
A cartoon has been drawn by Mike Flanagan for the 5th anniversary of the launch of Karel’s Legal Blog
June 1st, 2010 marks the 5th anniversary of my legal blog. This is an important milestone for me. Back in May 2005 I only had a rough idea about blogging and what it would take to create a successful legal blog a.k.a. blawg. Now, five years and some 350,000 page views later, I know that despite …
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COMMENCING PROCEEDINGS AGAINST MULTIPLE DEFENDANTS IN THE DUTCH CARIBBEAN
Non-residents can be sued
A general rule under the Netherlands Antilles code of civil procedure is that the Curacao court (or another court in the Dutch Caribbean as the case may be) has jurisdiction over defendants which are (in this example) Curacao residents or companies with an office in Curacao. In the case of multiple defendants, there is a general rule to the effect that if a Netherlands Antilles court has jurisdiction over one of the defendants (i.e., where the defendant has its corporate seat or domicile) it has jurisdiction over all defendants, including non-Netherlands Antilles residents or companies in cases …
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INADEQUATE CAPITALIZATION OF AN ARUBAN COMPANY
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 Aruba 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 company, unless …
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SUPERVISION OF TRUST COMPANIES IN THE DUTCH CARIBBEAN
Trust companies render management services
The supervision of trust companies is dealt with in the National Ordinance on the Supervision of Trust Service Providers 2003 (‘Landsverordening toezicht trustwezen’, the ‘NOST’). Supervision of trust companies (a.k.a. fiduciary or company service providers) falls in the category integrity supervision and not in the category prudential supervision. The supervisor is the Central Bank of the Netherlands Antilles. The ordinance prohibits anyone from rendering fiduciary or trust services without a license.
According to Art. 10 of the NOST, trust services means: (a) establishing an international company or causing it to be established when such is …
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LAW FIRM MARKETING AND THE INTERNET
Blog posts reinforce your expertise and reputation
I found this article on CNN’s website: ‘How can small companies make money from social media?’, and it made me start thinking about whether social media is a business for law firms.
I joined LinkedIn and SunZu (f.k.a. Ecademy) back in 2004. I was among the 1st million members of LinkedIn: member number 952,524 in fact!
I now have profiles on Xing, Facebook, Eleqt (f.k.a. Elysiants), Legal360.nl, Martindale-Hubbell Connected and several other sites too. Joining …
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THE THREE STAGES OF LEGAL PROCEEDINGS IN THE DUTCH CARIBBEAN
General observations regarding adversarial proceedings
All adversarial proceedings in the Dutch Caribbean shall be initiated by means of a petition to the Court of First Instance of the Netherlands Antilles or Aruba. Claims will be denied or rejected (afgewezen) by the Court if ruled that they are unfounded. If a claim is denied for reasons other than the merits of the claim then the claimant’s complaint will be declared non-admissible (niet-ontvankelijk). In exceptional cases the petition will be declared void and in some cases the court may rule that it is not competent to hear the case.
An appeal can …
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