LECTURE ON GOOD CORPORATE GOVERNANCE IN CURACAO
Corporate Governance Adviser must be a strong and independent watchdog over the executive also
On April 13, 2010 a seminar on Good Corporate Governance with respect to Curacao-owned enterprises and foundations was held in Curacao, and organized by Certa Legal. I was one of the keynote speakers and delivered my presentation in the Dutch language (click here for the presentation or click here for the coverage of the event by the Antilliaans Dagblad).
I argued that government-owned companies should be left out of the political sphere as much as possible, so they can benefit …
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ORDINARY ADVERSARIAL VERSUS SUMMARY PROCEEDINGS IN THE DUTCH CARIBBEAN
The court only considers the key issues
According to Article 110 and 111 of the Netherlands Antilles Code of Civil Proceedings (NACCP), all adversarial proceedings shall be initiated by means of a petition to the Court of First Instance. Proceedings so initiated are ordinary proceedings, unless the petitioner expressly opts for preliminary relief proceedings (kort geding) under article 226 NACCP. This article provides that in urgent cases which require an immediate decision the plaintiff may request a provisional decision (beslissing bij voorraad).
Article 229 NACCP provides that a provisional decision rendered as a result of this special type of proceeding …
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OBITER DICTUM OR NOT?
Litigating twice on the same matter is not allowed
The Netherlands Antilles Code of Civil Procedure prevents parties from litigating twice on the same legal issue. The principle that a final judgment of a competent court is conclusive upon the parties in any subsequent litigation involving the same cause of action is known as ‘res judicata’. A Dutch court case is described below illustrating this principle: Utrecht District Court of 19 March 2009 (NJF 2009/291).
In initial litigation, the claimant had sought payment of certain contractual penalties. The Court of Appeals rejected the claim on two separate grounds, the first …
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DUTCH CARIBBEAN LITIGATION AND THE ESTABLISHMENT OF FACTS
Failing to contest may make a fact true
Facts play an important role in civil litigation. Facts are established by the Court in First Instance of the Netherlands Antilles or Aruba and by the Joint Court of Appeal of the Netherlands Antilles and Aruba, not by the Supreme Court. A review by the Supreme Court is not a full review, but is limited to verifying that the Court whose judgment is under review has not breached Netherlands Antilles laws (or Aruban laws as the case may be) and that there have been no defects in the proceedings resulting in the …
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CHAMBERS GLOBAL 2010 LAUNCHED
All-new law firm rankings
The Chambers Global 2010 was launched at the end of February 2010. You will find the all-new rankings and editorial on their website – www.chambersandpartners.com. The Chambers Global focuses on firms and lawyers who have truly international practices. This is what Chambers and Partners has to say about Spigthoff Attorneys & Tax Advisers Curacao:
This group has offices on Curaçao and in Amsterdam, which allows it to attract a great deal of work deriving from the Netherlands itself. With a focus on international financial deals and corporate work, the …
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PREJUDICED INTERESTS OF MINORITY SHAREHOLDERS IN THE NETHERLANDS ANTILLES
They may force the company to take-over their shares
Article 2:251(1) of the Netherlands Antilles Civil Code reads as follows: “A shareholder of registered shares, whose rights or interests are prejudiced to such an extent, by the conduct of the company or one or more co-shareholders, that a continuation of his shareholding cannot reasonably be required of him, may institute a claim against the company for withdrawal, demanding that his shares be acquired against payment in cash”.
This provision may only be successfully triggered in exceptional circumstances. This could be the case if the company or co-shareholders have a structural policy …
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PIERCING THE CORPORATE VEIL IN ARUBA
Ignoring the legal personality of a company
A shareholder is not personally liable for acts performed in the name of the company and is not liable to contribute to losses of the company in excess of the amount which he must pay to the company as contribution for his shares. There is therefore a legal separation between the assets and liabilities of the company and those of the shareholder.
Piercing the corporate veil in its purest form means making a shareholder responsible for the actions of the company. In essence this means ignoring the separate legal identity of the company. …
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ORDINARY VERSUS SUMMARY PROCEEDINGS IN ARUBA
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 judgment (‘beslissing bij voorraad’).
Article 229 of the Code provides that a provisional …
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ARUBAN LAW REGARDING CORPORATE AUTHORITY
The Aruba Trade Register should be checked
The laws of Aruba provide that, subject to restrictions laid down by any statutory provision or a corporation’s articles of association, the board of directors of a company shall be competent to represent the company, i.e. a limited liability company (NV, AVV or VBA). In the event of the company having several managing directors, any managing director shall be competent, insofar as not otherwise provided by the articles of association (or sometimes bylaws). The articles of association may also grant other officers, to be designated by or pursuant to the articles, representative authority, …
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PLC CROSS BORDER LAW FIRM RECOMMENDATIONS 2010
Netherlands Antilles
According to PLC Cross Border (Which lawyer?), Spigthoff Attorneys & Tax Advisers is one of two firms dominating the Netherlands Antilles market for international work, both on- and offshore.
Spigthoff ranks high in corporate / M&A and dispute resolution.
Martijn Welten, who specializes in corporate law, mergers & acquisitions and corporate litigation, is (highly) recommended in the areas of dispute resolution and corporate/M&A.
Karel Frielink is considered a leading professional in the area of high net-worth private clients. Karel is highly recommended in the areas of corporate and M&A, …
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FOREIGN CLAIMS SECURED BY ARUBAN SECURITY RIGHTS
The foreign law governed claim must be sufficiently identifiable
Many financing arrangements are of a cross-border nature. For instance, a loan agreement governed by English law with the loan secured by a right of pledge governed by the laws of Aruba. This raises all kinds of questions.
Any foreign right, for instance a claim, in which an Aruban pledge is created, must be sufficiently identifiable (‘met voldoende bepaaldheid omschreven’) within in the meaning of section 3:84(2) of the Civil Code of Aruba.
Also, if one wishes to create a right of pledge in a foreign right, such a right must …
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DRAG-ALONG RIGHTS UNDER THE LAWS OF ARUBA
Drag-along rights may be validly created
On January 1, 2009 the new Aruba Ordinance on companies with limited liability (vennootschap met beperkte aansprakelijkheid; VBA) became effective.
A drag-along right is a right that enables a majority shareholder to force a minority shareholder to join in the sale of his shares in a company (VBA). Generally, the majority shareholder doing the dragging must give the minority shareholder the same price, terms, and conditions that apply to him. The question with regards to Aruban law is whether the articles of association of a VBA may contain drag-along provisions.
Article 25(1) of the …
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