KAREL FRIELINK FULL MEMBER OF STEP
Trust and Estate Practitioner
The Society of Trust and Estate Practitioners (STEP) was founded in 1991 by George Tasker as a hub for local forums of practitioners. STEP is the international professional body for those who work in the trust industry and the (often overlapping) field of estate administration. Its members are mainly solicitors, barristers, attorneys, accountants, trust officers and trust administrators as well as banking and insurance professionals in the trust field.
The main focus of the organization is to administer the examination process to ensure the quality of the membership, to provide educational and networking opportunities …
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TRUST INTRODUCED IN SINT MAARTEN
Brief summary of several of the powers and obligations of a Trustee
On April 1, 2014, new legislation 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 St. Maarten (a civil law jurisdiction). Similar legislation entered into force in Curaçao on January 1, 2012.
The St. Maarten Trust could serve as an important tool for various financial and commercial transactions: as a security agent, for tax and estate planning, as a pension or investment fund, asset protection, voting structures, promoting cultural, academic and charitable …
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THE CURACAO TRUST BECOMES MORE AND MORE POPULAR
Curaçao Trust could be used for asset segregation purposes
According to Professor of Law David Hayton, an Anglo-Saxon trust arises from the settlor’s transfer of title to property to another person, intending that person to be a trustee-manager of it for the benefit of beneficiaries or for a charitable or other permitted purpose. Trusts are founded on a transfer of title to property: contracts are not. Professor Hayton:
Such a contractual concept inevitably leads – or rather misleads – civil lawyers to consider that the Anglo-Saxon trust is simply a glorified form of contract between the settlor …
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RISK MANAGEMENT AND ASSET PROTECTION
Curaçao offers legitimate risk management solutions
Why would one consider an asset protection strategy? There are individuals and business entities all around the world not trusting their government (e.g. fear for expropriation or nationalization by their government). Or they are seeking legitimate protection from any future downturns. Or they do not want the world to know about their wealth and do want to protect their privacy as much as possible. Asset protection also can be an aspect of business, personal or estate planning.
It is quite common that limited liability companies are used for operating a business. The alternative, a …
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ELECTRONIC MONEY INSTITUTIONS IN ARUBA
A license is required
The European Central Bank defines e-money as follows (a non-legal definition): “E-money can be defined as any amount of monetary value represented by a claim issued on a prepaid basis, stored in an electronic medium (for example, a card or computer) and accepted as a means of payment by undertakings other than the issuer, predominantly for small-value transactions (for example, the settlement of modest transactions over the Internet and of parking or telephone charges and payment for public transport services).” (Electronic Money Institutions. Current trends, regulatory issues and future prospects. Legal Working Paper Series, No. 7/2008).
ASSET PROTECTION IN CURACAO
Curaçao: a jurisdiction not to be missed
A Curaçao private foundation or a trust is often used for asset protection and privacy purposes. The Curaçao private foundation and the Curaçao trust must be set up by a notarial deed executed before a civil law notary in Curaçao. Both the private foundation and the trust are a very flexible solution for asset protection and privacy purposes. A private foundation, for instance, can be easily implemented in international holding structures through Curaçao and is very suitable for family asset protection. By means of a letter of wishes or provisions in the articles …
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THE CURACAO TRUST
Can be used as protected or segregated cell company
On 1 January 2012, new legislation entered into force according to which it is now possible to set up a trust (Curacao Trust) similar to the trust in Anglo-Saxon common law jurisdictions. The introduction of the Curacao Trust serves as an important instrument which could be used within financial transactions in the Caribbean as a significant part of these transactions are initiated from common law jurisdictions.
The Curacao Trust can be used for different purposes, such as, for example:
SYMPOSIUM ON 35 YEARS OF THE CURACAO BAR ASSOCIATION (16 NOVEMBER 2012)
Presentation by Karel Frielink – President (part 2)
Civil Litigation Law should be better
So now I will deal with the subject of this symposium. I begin straight away with a provoking statement: Our Civil Litigation Law should be better. This goes further than it ‘could’ be better. However, we shouldn’t only think about the question of how the law should be improved but also about the question of whether or not judges and advocates (attorneys, lawyers) are operating optimally and whether adjustments to the system can contribute to a better operation and to a better administration of justice. And …
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SYMPOSIUM ON 35 YEARS OF THE CURACAO BAR ASSOCIATION (16 NOVEMBER 2012)
Presentation by Karel Frielink – President (part 1)
Ladies and gentlemen!
Today the symposium on the “Seven years of the new Code of Civil Procedure” is taking place in honor of the 35th anniversary of the Curacao Bar Association. The 35-year existence of the Bar is an occasion for celebration which is quite rightly paid attention to by focusing on an important subject: litigation law. I will begin by telling you something about the early period of the Bar. After this and anticipating the discussions this afternoon, I will broach two subjects of litigation law which are eligible for improvement. …
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LEGAL ACTION AGAINST A CURACAO TRUSTEE
Who can bring an action?
If the trust assets have been prejudiced, the action can be brought by any co-trustee. Unless provided for to the contrary in the trust deed the action can also be brought by a protector or beneficiary on the understanding that the compensation is paid as soon as possible to a Trustee not being the Trustee who violated his duties (Section 3:143 subsection 4 Curacao Civil Code {‘CCC’}). The question is to whom the protector has to pay the compensation if there is no co-trustee. This question is not answered in legislation, but in practice in …
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MY VIEW ON THE LIABILITY OF A CURACAO TRUSTEE
The Reference Trustee
The trust originates from Anglo Saxon law. On designing the Curacao trust system the systems in other jurisdictions have obviously been studied. However, the Curacao trust is a civil law and not a common law trust. Therefore in answering the question of the (possible) extent of the liability as given shape in Book 3 Curacao Civil Code (‘CCC’), a connection should be sought with the law of Curacao (and elsewhere in the Kingdom) and not with foreign legal systems.
The fact that the Trustee has a position of trust, as laid down by law, does not, according …
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CURACAO TRUSTEE HAS A DUTY OF CARE
Trustee is liable if he fails to exercise due care
A duty of care is justified in those cases where someone entrusts his financial or other interests to another or takes care of these himself with the assistance of the other, particularly because that other possesses more knowledge and experience in that field. The law formulates as a general standard that the Trustee is liable if he fails to exercise due care as a good Trustee unless he cannot be blamed for the failure (Section 3:143 subsection 1 Curacao Civil Code {‘CCC’}). This relates to a duty arising from the …
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