SUMMARY PROCEEDINGS IN ARUBA, BONAIRE, CURACAO AND SAINT MAARTEN
Preliminary relief within several weeks, sometimes within days or hours
In all matters for which an immediate injunction, measure, or decision is required, the parties may address themselves to the Courts. If the matter does not require immediate resolution, the Court will deny the relief sought and refer the parties to the normal procedure. These preliminary relief proceedings (kort geding procedure) differ substantially from, for instance, US summary proceedings.
This type of intervention by the Courts is sought in many kinds of matters, including disputes with shareholders, attachments, or the enforcement of judgments. At the request of the claimant, the …
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GRANTING DISCHARGE TO MANAGING DIRECTORS
Discharge is not bankruptcy proof
The Civil Codes of Curaçao, Sint Maarten and Bonaire do not contain provisions specifically dealing with discharging managing directors from liability. Neither is there conclusive Dutch Caribbean case law available yet.
Managing directors of a limited liability company (NV or BV) can be discharged from their liability towards the company. Managers can be discharged of liability by an express shareholders’ resolution, however the articles of many companies contain a provision stating that approval of the annual accounts by the shareholders’ meeting discharges the managing director from his/her liability towards the company with regards to the …
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STATE-OWNED ENTERPRISES LACK OF INDEPENDENT SUPERVISION
Independent supervision should be mandatory for government-owned entities
It has been my opinion for many years already that government-owned companies should be kept out of the political sphere as much as possible, so that they may benefit from a commercial, businesslike and market-oriented management. In doing so they also run less of a risk of being milked or used as political toys.
Recently, I commented on the model articles of association (statuten) drawn up for government companies by order of the country Curacao. They grant the shareholders meeting (i.e. the government) and the board of supervisory directors of the companies in …
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BANKING REGULATIONS IN THE DUTCH CARIBBEAN
Soliciting funds requires a license
The Netherlands Antilles was dissolved on October 10, 2010. Prior to that date the Netherlands Antilles consisted of Curacao, St. Maarten, Bonaire, St. Eustatius, and Saba, and formed, together with the Netherlands and Aruba, the Kingdom of the Netherlands. Curacao and St. Maarten have become independent countries within the Kingdom. They stand on equal footing with the Netherlands and with Aruba, each country with its own set of laws. Bonaire, St. Eustatius and Saba (the “BES-islands”), have, as public entities, become part of the Netherlands. The civil, corporate and banking laws of Curacao, St. Maarten …
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GOVERNMENT OWNED ENTITIES IN CURACAO
Concerns about additional authorities Ministers
Attorney Karel Frielink is concerned about the additional authorities which cabinet-members have appropriated over government NV’s.
According to Frielink, who is also President of the Bar Association, these extra authorities increase the chance of ‘political influencing, favoritism and other forms of abuse’ within government institutions.
In an opinion paper, published in the Antilliaans Dagblad, Frielink comments on the model articles of association (statuten) recently drawn up for government companies by order of the country Curacao. According to the government’s explanatory notes, the new model articles of association particularly dwell on the exceptional position of government NV’s …
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WHO DETERMINES THE POLICY OF A DUTCH CARIBBEAN COMPANY?
The management board is in charge
The shareholders have the authority to determine the general policy of a Dutch Caribbean NV or BV. The shareholders may give instructions to the management board with respect to the general direction of the financial, social, economic and personnel policies of the corporation.
However, the shareholders cannot give detailed instructions to the management board unless (in the general view of legal practitioners, myself included) the articles of association so permit. Although not explicitly provided for in Book 2 of the Dutch Caribbean Civil Code (CC), it is considered a general rule of corporate law …
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THE UTOPIAN LAWYER
Dare to dream!
A high degree of civilisation must be expected from the ideal advocate (attorney; lawyer) as well as a high degree of learning and expertise. A practical attitude, language skill and rhetorical ability form part of the standard baggage of the utopian advocate. He is not only feared for his razor-sharp analyses, for breaking through reasoning utterly lacking any logic and for turning the attackers of the rule of law to stone, but both friend as well as foe respect his disposition as well as his expertise.
Quite often the utopian advocate will get the feeling that in …
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THE LAWYER AS A VIRTUOSO OF LANGUAGE (PART II)
The use of technical concepts has a useful function
Another example is the Directive of the European Commission of 18 February 1985 (85/205/EEC) adapting to technical progress Council Directive 71/127/EEC on the approximation of the laws of the Member States relating to the rear-view mirrors of motor vehicles. The term “rear-view mirror” in itself means a device excluding complex optical systems such as periscopes, intended to give a clear view to the rear and side of the vehicle within the fields of vision defined in item 5 of Annex III.
There was at some time a Directive proposal to define …
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THE LAWYER AS A VIRTUOSO OF LANGUAGE (PART I)
The use of technical concepts has a useful function
Language is the instrument par excellence of the advocate (attorney; lawyer). He uses language to lay down agreements, to provide legal advices, to formulate Court documents, to send demand letters, to make his plea or to conduct talks with clients or counterparties, to send invoices, in short: to practice his profession. For many people what advocates write down is difficult to fathom. One of the reasons for this is because legislation and regulations are formulated rather formally and in an indirect form while using a lot of abstract concepts. Here are only …
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THE LAWYER AS ORATOR
A sensitive subject
The advocate (attorney; lawyer) as orator is a sensitive subject. Many clients will have listened with curled toes or alternatively with a deep feeling of embarrassment to their own advocate or (if they are lucky) to that of their counterparty at the moment suprême when the so-carefully prepared written summary of the argument is read out dryly and stumbling over the words or at least in a scarcely inspiring manner. And the one who has bad luck will be faced with a ‘read-out advocate‘ who sometimes does even thirty or more pages. And all this whereas the first Roman …
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ON THE IMAGE OF LAWYERS
Bloodsuckers and hypocrites?
Lawyers (attorneys) are often exposed to strong criticism, both here and elsewhere. The late famous Dutch professor A. Pitlo (Evolutie in het privaatrecht, [Evolution in private law] Groningen: H.D. Tjeenk Willink 1972, p. 102) speaks with regard to certain advocates (lawyers) about the ‘half-intellect’ that by intellectualism must succeed in being kept up towards the masses.
Publications that are extremely critical of advocates can date from any time and the first ones already from before ancient Rome. In this connection François Rabelais (1494-1553) should also be mentioned and (more or less in his footsteps) Honoré Daumier (1808-1879). …
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THE LAWYER AS CRAFTSMAN
Tradition and resourcefulness
You could hear these statements just about anywhere: “The study of law is a dull study. You have to read a lot of books and especially learn a lot by heart. But luckily it is not a difficult study. It is more or less the easiest study to graduate in.” Is all this true? It depends and it depends particularly on yourself. For ‘marginalists’ and notorious ‘superficial thinkers’ all this is more or less at a premium. But it is questionable whether these are the people who have the right qualities to practice the craftsmanlike profession of …
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