BES LAW DEVELOPMENTS

Bonaire, St. Eustatius and Saba (BES)

Within a couple of years, the BES Islands, as public entities, will be part of the country of the Netherlands in the framework of the political restructuring in the Kingdom of the Netherlands. The US dollar will be introduced as the new currency in the BES Islands. Curacao and St. Maarten will each become a country within the Kingdom of the Netherlands and have their own legislation and regulations.

The starting point of the political restructuring is that Dutch legislation will be introduced only gradually into the BES Islands. It has been established that differences between the European part of the Netherlands and the BES Islands are possible, provided they are based on grounds to be incorporated to that end in the Charter of the Kingdom, including: economic and social circumstances, the long distance to the European part of the Kingdom, the small scale of the population and other factors, on account of which these islands differ substantially from the European part of the Netherlands. In the field of financial markets, there is every reason for deviating regulations instead of introducing Dutch legislation.

The Dutch Ministry of Finance is preparing legislation for the BES Islands, among other things, in the field of financial law (for information in Dutch click here). One of the starting points is that, notwithstanding integration of the BES Islands into the country of the Netherlands, the BES Islands and the Netherlands will remain two separate jurisdictions with regard to the activities in the financial sector. This means that a financial institution that is active in the Netherlands with a license, on the basis of the Financial Supervision Act (Fsa), may not be automatically active in the BES Islands. On the other hand, an institution with a BES license may, consequently, not operate in the Netherlands on the basis of that BES license.

The legislation that is involved here, is related to banks, insurers, insurance brokers, investment institutions and administrators thereof, money transfer offices and trust offices. Combating money laundering and financing terrorism also belong to this category.

The Dutch Central Bank (DCB) and the Financial Markets Authority (FMA) will be appointed as Supervisors with regard to the BES Islands. The DCB will be responsible for the supervision of banks, insurers and trust offices; the FMA for the supervision of insurance brokers, investment institutions and administrators, and stock markets.

After the transition, the financial institutions that are active in the BES Islands will, in principle, need a license on the basis of the supervisory laws applicable in the BES Islands, and subsequently come under the supervision of the DCB or the FMA. This applies to independent establishments as well as branch offices, and in certain cases also to financial enterprises (such as investment institutions) that offer their products and services in the BES Islands without being established there. All this is the direct consequence of the political restructuring, on account of which the BES Islands will be separated by a frontier from Curacao, respectively St. Maarten.

For financial enterprises that are already active in the BES Islands, the BNA license, insofar as it is related to their activities in the BES Islands, will be converted into a DCB license, respectively FMA license by operation of law, pursuant to transitional law. New entrants will have to apply at the Dutch Supervisors in the new situation and will have to apply for a license on the basis of BES legislation.

The Bank of the Netherlands Antilles (BNA), or its legal successor, will be responsible, as Supervisor for Curacao and St. Maarten, for the home country supervision (group supervision) of financial enterprises, established in the new countries. Among them are many of the banks and insurers that are active in the BES Islands (via a branch office or by means of performance of services). For this reason, the BNA will remain closely involved with the supervision of financial institutions in the BES Islands.

On June 24, 2009, a round of consultations started. All the market parties are involved (click here). There are two consultation documents: the consultation document Supervision BES and the consultation document Integrity BES (both in Dutch). It is possible to react to these consultation documents up to and including August 21, 2009.

Karel Frielink
Attorney (Lawyer) / Partner

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