SUMMARY PROCEEDINGS IN THE DUTCH CARIBBEAN (III)

Judge will balance interests

In general the court will take into account the detriment which the plaintiff in summary proceedings will suffer if he has to wait too long for a judgment in a procedure on the merits.

In summary proceedings the judge needs to balance the interests of the plaintiff and the defendant. In practice, this balancing of interests plays an important role in the procedure. The judge may dismiss a claim in summary proceedings if the consequences for the defendant would be too drastic. An important factor will be the probability of a positive or negative decision on …
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25
Jul 2009
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Legal

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SUMMARY PROCEEDINGS IN THE DUTCH CARIBBEAN (II)

Urgency is a requirement

Provisional measures may always be given in summary proceedings in civil cases if the claim meets the following three conditions: (i) there is an urgent interest at stake; (ii) the interests of both parties needs to be balanced; and (iii) the balancing of interests justifies a decision in summary proceedings.

The fact that the judge in summary proceedings (hereafter: “the judge”) is formally competent to render a decision, does not imply that he will accept the claim or will decide in favor of it. The nature of summary proceedings implies that the case not only needs …
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18
Jul 2009
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Legal

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SUMMARY PROCEEDINGS IN THE DUTCH CARIBBEAN (I)

Attempting to obtain temporary instructions from the court

The procedure for provisional measures in summary proceedings (in Dutch: kort geding), a.k.a. interlocutory proceedings, is an interim injunction procedure before the court. Such proceedings, under Netherlands Antilles law, are aimed at obtaining temporary instructions from the court, not at receiving a final decision in the case.

These proceedings are characterized by their more or less summary character and their relatively quick nature. There is a clear relationship to a procedure on the merits, which always may be instituted and sometimes even must be followed. Provisional measures that are prescribed in summary …
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11
Jul 2009
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Legal

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FILE SHARING IN THE DUTCH CARIBBEAN

Internet service providers should act prudently regarding claimed copyright infringement

File sharing, as is commonly understood, involves distributing or providing access to electronically stored data. One, if not the most, popular way to do this is through the use of so-called (distributed) peer-to-peer (P2P) networking programs. The rising popularity of music formats such as mp3 (a format for the compression of audio data) has led to the release and growth of software designed to make the sharing of electronic data relatively easy.

One of the legal issues involved with file sharing is that the shared data may (wholly or partially) …
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04
Jul 2009
CATEGORY

Legal

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AGENCY AND DISTRIBUTION AGREEMENTS IN THE NETHERLANDS CARIBBEAN (II)

Distribution agreement

So-called agency agreements frequently bear resemblance in actual practice, to (certain aspects of) distribution agreements. Hence, so-called ‘agency agreements’ are in actual fact not infrequently mixed type agreements, consisting of an agent and a distribution element.

In general, a distributor buys goods from a principal in his own name and for his own account and resells these goods to third parties in his own name and for his own account.

Distribution agreements are not defined in any Netherlands Antilles statute and are not subject to any specific Netherlands Antilles legislation. The distribution agreement is an agreement sui generis, …
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27
Jun 2009
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Legal

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AGENCY AND DISTRIBUTION AGREEMENTS IN THE NETHERLANDS CARIBBEAN (I)

Commercial Agency Agreement

According to Section 7:428, Paragraph 1, of the Netherlands Antilles Civil Code, a commercial agency contract (agentuurovereenkomst) is a contract for services whereby one party, the principal, instructs the other party, the commercial agent, and whereby the latter binds himself, for a fixed or indeterminate term and for remuneration, to act as an intermediary in the conclusion of contracts, and, as the case may be, to enter into such contracts in the name and for the account of the principal, without being his subordinate.

No procedural requirements apply for entering into an agency agreement, and it may …
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20
Jun 2009
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Legal

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UNLAWFUL ACTS UNDER ARUBAN LAW

Several requirements apply

Article 6:162 section 1 of the Aruba Civil Code (Aruba CC) stipulates four conditions for someone’s obligation to compensate damage based on an unlawful act (tort):

  • A person has committed an unlawful act (‘onrechtmatige daad’) against another person; and
  • The act can be attributed (‘toegerekend’) to that person; and
  • Some other person has suffered damage (‘schade’); and
  • The unlawful act has caused these damages (‘causaal verband’).
  • Article 6:163 Aruba CC provides for an exception to the general rule of article 6:162 Aruba CC: “There is no obligation to repair damage when the violated norm does not have …
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    13
    Jun 2009
    CATEGORY

    Legal

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    TRANSACTIONAL POWER OF THE MANAGING BOARD OF A DUTCH CARIBBEAN CORPORATION (II)

    Only corporations may plead absence of representative authority

    Under the Netherlands Antilles Corporate Code, i.e. Book 2 of the Civil Code, transactions with third parties that violate either the law or any limitations on the transactional powers of the board of directors of a corporation, are not enforceable against the corporation if the limitations are properly disclosed at the trade register. According to Article 2:10(3) Netherlands Antilles Civil Code only corporations may plead the absence of representative authority.

    A counterparty wishing to withdraw from a legal act on that ground, may only rely on the fourth paragraph of Article 2:10 …
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    30
    May 2009
    CATEGORY

    Corporate

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    TRANSACTIONAL POWER OF THE MANAGING BOARD OF A DUTCH CARIBBEAN CORPORATION (I)

    Limitations must be disclosed to have effect

    Netherlands Antilles law provides that, subject to restrictions laid down by the Netherlands Antilles Corporate Code or a corporation’s articles of association, the board of directors of a corporation shall be competent to represent the corporation, e.g. a limited liability company (‘naamloze of besloten vennootschap’; NV or BV). In the event of several managing directors, any managing director shall be competent, insofar as not otherwise provided for by the articles of association. 

    Under Netherlands Antilles law, information required to be disclosed pursuant to the Civil Code, for instance (i) the identities of the …
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    26
    May 2009
    CATEGORY

    Corporate

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    SPOTLIGHT ON CURACAO

    Curacao economic country survey inserted in the New York Post

    In May 2009, United International Press (UIP) issued a special bulletin on Curacao, the Netherlands Antilles, in an insert in the New York Post. UIP has also placed the bulletin on its website. Curacao is described as a Caribbean Hub with Investment Appeal. Amongst various government institutions and businesses, Spigthoff Attorneys & Tax Advisers is also mentioned (click here).

    According to its website,

    “United International Press is a media agency specialized in the production of comprehensive economic country surveys inserted in the New York Post. …
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    20
    May 2009
    CATEGORY

    Various

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    TRADE MARK LAW: PLACING LUXURY GOODS IN DISCOUNT STORES CAN AFFECT THEIR QUALITY

    French fashion house Dior has the upper hand in legal battle over ‘dumping’ of its goods

    Placing luxury goods like Christian Dior products in discount stores can affect their quality according to the European Court of Justice, in a ruling on April 23, 2009, thereby backing the renowned French fashion house Dior in a trademark case. At issue is the extent to which companies such as Dior can defend themselves against products bearing their brands being “dumped” even though the licensing agreement clearly prohibits the licensee from doing so.

    On May 17, 2000 the fashion house concluded a …
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    28
    Apr 2009
    CATEGORY

    Legal

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    GROUP RESTRUCTURING AND REFINANCING

    Plan and act prudently: better to be safe than sorry

    Especially in these times of global economic and financial turmoil, a group (or part thereof) might want to consider restructuring and refinancing its operations or may be already in the process of doing so. When considering or carrying out such plans, careful thought must be given to potential (legal) risks involved. For instance, in many jurisdictions specific statutory provisions exist regarding fraudulent preference actions, i.e. actions that prejudice (specific) creditors. Such provisions often also apply in full with respect to (individual companies belonging to) a group of companies, and should …
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    25
    Mar 2009
    CATEGORY

    Corporate

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