Spigthoff represented plaintiff
According to a recent court ruling in the Netherlands Antilles (Court of First Instance, 17 July 2008), a same-sex couple that was married in the Netherlands and subsequently moved to the Netherlands Antilles (Curacao), has the same rights under Netherlands Antilles law (or Aruban law as the case may be) as Netherlands Antilles opposite-married couples as far as health insurance is concerned. Dr. Douwe Boersema of Spigthoff Attorneys & Tax Advisers on Curacao represented the couple.
Same-sex couples have been able to marry in the Netherlands for the last seven years. However, Aruba and the Netherlands Antilles have not changed their legislation which still does not allow such marriages. Moreover, the government of the Netherlands Antilles, and that of Aruba, refuse to treat same-sex couples who married in the Netherlands equally with opposite-married couples. However, according to the law, Dutch same-sex couples are entitled to all lawful rights in the Netherlands Antilles or Aruba pertaining to their marital status.
The Supreme Court of the Netherlands, the Netherlands Antilles and Aruba ruled on 13 April 2007 that Aruba must recognize same-sex marriages registered in the Netherlands. Although same-sex marriages cannot be performed in Aruba or the Netherlands Antilles, both countries are forced to at least recognize same-sex marriages performed in the Netherlands. The rulings of the Supreme Court in The Hague and of the Court of First Instance on Curacao are based on the Kingdom Charter (’Statuut‘): legal provisions in force in one part of the Kingdom have the same legal force in the other two parts of the Kingdom.
Generally speaking, in my opinion, and as a matter of principle, governments should not interfere with their citizens’ private lives unless it is necessary to do so to protect their basic rights and freedom of choice. People should be as free as possible to make their own choices.
Karel Frielink
Attorney (lawyer) / Partner
Filed under: legal by Karel.Frielink
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Management’s responsibility
According to Netherlands Antilles law, annually, within eight months after the company’s financial year has ended, (unless this term has been extended by the general meeting) annual statements must be drawn up by the management board and submitted to the general meeting of shareholders. The annual statements, comprising the balance sheet, profit and loss account and an explanatory statement, should be signed by all the directors.
The annual statements should be approved by the general meeting of shareholders. Said meeting can and, when this is prescribed by the articles of association, shall appoint an expert to regularly supervise the bookkeeping and to report to the meeting on the balance sheet and profit and loss account with explanatory statement as drafted by the management board.
Karel Frielink
Attorney (Lawyer) / Partner
Filed under: Corporate by Karel.Frielink
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Quality of health care is regulated
Secondary health care in the Netherlands Antilles is provided in hospitals. There are seven hospitals on Curaçao, with a total of 1,187 beds, 46% of them in the Sint Elizabeth Hospital (Sehos) and 16.9% in various specialized institutes for the disabled and drug addicts.
The Netherlands Antilles National Ordinance on Health Institutions (NOHI) provides rules for governing institutions providing healthcare in the Netherlands Antilles. The definition of health care institutions in the NOHI is very broad.
The NOHI regulates, amongst others, (i) the establishment of healthcare providers in the Netherlands Antilles; (ii) buying of medical devices by such institutions, and (iii) regulating the quality of the healthcare provided by such institutions.
The NOHI distinguishes between institutions providing health care in general and hospital institutions. Hospital institutions are institutions providing health care that have been appointed by a National Decree as being hospital institutions.
Karel Frielink
Attorney (Lawyer) / Partner
Filed under: legal by Karel.Frielink
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The debtor may make an offer of composition
The nature of a Netherlands Antilles’ moratorium differs substantially from a moratorium under US law and does, in particular, not cause pending proceedings to be stayed. Generally, a moratorium in the Netherlands Antilles protects a debtor from claims existing at the time of the moratorium. It does not prevent litigating such claims, but judgments obtained cannot be enforced.
During a moratorium, the creditor is prevented from enforcing ordinary agreements against the party to which the moratorium is granted. Instead, creditors may file their claims with the administrator in the moratorium. If the performance of the obligation that is frustrated by the moratorium has no monetary equivalent, its value is assessed.
The party to which a moratorium is granted may make an offer of composition to its creditors, offering to settle all claims, for example against payment of a certain percentage of their claims. If accepted by a number of creditors representing at least 75% of all creditors admitted to the vote and representing at least 66,6% of the total amount of acknowledged debt, then the composition is binding for all the creditors (even on creditors who failed to file their claims and on creditors not admitted to the vote). The composition is furthermore subject to the bankruptcy court’s approval, however this is usually a formality.
The Netherlands Antilles Bankruptcy Law (”Faillissementsbesluit 1931“) contains a provision allowing any creditor to request the Court to end the moratorium, if
- the estate (i.e. the financial position of the debtor) renders continuation of the moratorium undesirable, or
- if the debtor has jeopardized or tried to jeopardize the interests of the creditors.
Continuation of a moratorium is undesirable if, e.g., the financial position of the debtor allows it to meet all its obligations.
Karel Frielink
Attorney (Lawyer) / Partner
Filed under: legal by Karel.Frielink
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An opportunity to recover
Many companies face financial difficulties. Sometimes bankruptcy is the only option. The goal of the bankruptcy is the liquidation of the assets of the company and not to save the business, and this procedure is, therefore, not always the best procedure for realizing the full value of the company as a going concern.
Under the laws of the Netherlands Antilles, a temporary suspension or moratorium of payments (‘surséance van betaling’) is a general suspension of a debtor’s obligations ordered by the court. Only the debtor himself may request a moratorium, on the grounds that he is unable to continue payments.
The purpose of such a moratorium is to avoid the bankruptcy of the debtor which is in the interest of both the debtor and his creditors. A moratorium gives the debtor an opportunity to recover. It may lead to a normal resumption of payments or to a settlement. In many cases, however, a moratorium is followed by bankruptcy.
During the moratorium, unsecured creditors cannot enforce their rights. However, secured creditors can exercise their rights despite the moratorium.
The moratorium trustee or administrator in the moratorium (’bewindvoerder‘) has less powers than a liquidator in a bankruptcy. The administrator may only act with the cooperation of the debtor, i.e. the management in the case of a company, and vice versa.
Karel Frielink
Attorney (Lawyer) / Partner
Filed under: legal by Karel.Frielink
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Foreign security rights may be valid and enforceable
According to Netherlands Antilles law, the question as to whether or not a security right may be created in a certain receivable must be determined according to the law governing that receivable. Netherlands Antilles international private law determines that the law that governs the receivable is the law that governs the underlying contract of the receivable.
However, if the minimum requirements of a Netherlands Antilles security right have been met, a foreign law governed security right may be valid and enforceable, as if it were a Netherlands Antilles security right.
It is not decisive whether or not a foreign security interest is similar in all respects to a security right available under the laws of the Netherlands Antilles, but whether or not, in view to the application of a specific provision of the laws of the Netherlands Antilles, the foreign security interest can, in terms of its content and purpose, be considered equivalent to a related Netherlands Antilles security interest.
Karel Frielink
Attorney (Lawyer) / Partner
Filed under: legal by Karel.Frielink
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Not always charged at actual cost
Most law firms charge their fees on the basis of hourly rates, which are determined by the seniority of the attorneys involved. It is also standard practice for Netherlands Antilles law firms to charge office disbursements separately as a percentage, e.g. 6%, of their legal fees. Such disbursements comprise, amongst other things, phone and fax costs, secretarial support, including overtime, and photocopying.
Only specific expenses and disbursements, e.g. bailiff costs, court costs, courier costs, translation costs and travel costs, are charged at actual cost. Most clients expect a law firm obtain prior approval regarding all ‘unexpected’ major disbursements, e.g., business class tickets, limousine rentals and the like.
Hiring a large law firm is however not always cost-effective. An analysis revealed that the average rates for law firm partners grew as the number of lawyers in a firm grew: each additional 100 lawyers raised the average partner rate by $13. It appears size does matter!
Karel Frielink
Attorney (Lawyer) / Partner
Filed under: legal by Karel.Frielink
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A long period of stagnation appears to have ended in the Netherlands Antilles
The International Monetary Fund (IMF) undertook a mission - an official staff visit to the Netherlands Antilles - as part of regular consultations under Article IV of the IMF’s Articles of Agreement. Click here for their preliminary conclusions.
According to the IMF, sustaining investor confidence would be important for ensuring that growth remains above historical norms in the medium term.
The IMF projects growth in the islands now comprising the Netherlands Antilles to moderate to some 2½ percent by 2011. This is cautiously optimistic, and is predicated on recovering export markets, increased capacity from recent infrastructure investments, and - owing to the introduction of a fiscal rule and debt forgiveness - improved business confidence.
Pension and healthcare reform is now urgent, says the IMF. They welcome the introduction of a balanced budget rule and fiscal supervision starting 2009, but implementation will be key. Other structural reforms are necessary as well.
Karel Frielink
Filed under: Uncategorized by Karel.Frielink
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Only legal entities may serve as a fund
According to the Netherlands Antilles National Ordinance on Corporate Pension Funds only legal entities may serve as a corporate pension fund. The foundation (‘stichting’) is the legal form most used for these purposes.
The main reason for using a foundation instead of a legal entity of which the equity is divided in shares is that there are no shareholders interest which could conflict with the interest of the participants in the pension fund.
Furthermore, Netherlands Antilles corporate law includes some specific provisions for foundations that are used as a pension fund. Participants in a pension fund will not be considered members of a foundation (under Netherlands Antilles law foundations are not allowed to have members) and distributions arising from a right to a pension shall not be deemed distributions as contained in the prohibition to make any distributions from the foundation.
Another option could be to make use of a limited liability company (NV) or a private limited liability company (BV). As mentioned before a disadvantage of the use of a (private) limited liability company is that the interests of shareholders could conflict with the interests of the participants. It will depend on the tax terms which legal entity will be used for the set up of the pension fund.
Karel Frielink
Attorney (Lawyer) / Partner
Filed under: legal by Karel.Frielink
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Russia relatively immune
In the May 2008 issue of Business Law International (Volume 9, No 2, pp. 100-113), an article by Noah Rubins and Azizjon Nazarov was published. In this article, ‘Investment Treaties and the Russian Federation: Baiting the Bear?‘, the authors look at international treaties for the encouragement and protection of foreign investment such as the Energy Charter Treaty 1994 (ECT) as well as bilateral investment treaties (BITs).
The Energy Charter Treaty provides, a.o., that each Contracting Party shall encourage and create stable, equitable, favorable and transparent conditions for Investors (as defined in the ECT) of other Contracting Parties to make investments in its Area (Article 10(1) of the ECT). The ECT contains provisions that aim at the protection of such international investments.
In 1995, Russia signed this treaty, but it was never submitted to the Duma for ratification, which is an essential prerequisite for the treaty entering into force. Russia has signed dozens of BITs, but only 30 were ratified by the Duma. However, the terms of these treaties create additional complexity when considering an arbitration claim.
According to the authors, the Russian Federation has been relatively immune from the effects of the investment protection treaties it has signed. However, there are several cases pending, including claims related to the shutdown and auctioning of Yukos and its assets. The arbitration cases may prove a testing ground for the effectiveness of Russia’s investment treaties.
Karel Frielink
Attorney (Lawyer) / Partner
Filed under: legal by Karel.Frielink
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