REGULATORY LAWS IN THE BES ISLANDS

There are three regulators

According to the Dutch Central Bank (“DCB”), financial institutions must be sound, reliable and stable to ensure confidence among businesses, consumers and others. DCB states on its website: “In addition to making certain their customers are properly informed about their products and services, these institutions also have a duty of care towards their customers. The financial services industry should also give a high priority to integrity and should never be used for money laundering, terrorist financing, fraud, corruption or other illegal activities. Finally, the market should function properly and there should be adequate market access, with scope for new initiatives. Naturally, these objectives apply in full to the public bodies (i.e. Bonaire, St. Eustatius and Saba -KF).

The Netherlands Antilles dissolved on October 10, 2010. Prior to that date, the Netherlands Antilles consisted of Curaçao, St. Maarten, Bonaire, St. Eustatius, and Saba, and formed, together with the Netherlands and Aruba, the Kingdom of the Netherlands. Curaçao 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. Civil, corporate tax and banking laws of Curaçao and St. Maarten are substantially the same as Netherlands Antilles law before the dissolution. Bonaire, St. Eustatius and Saba (the “BES islands”), have, as public entities, become part of the Netherlands. The Dutch Central Bank and the Dutch Authority for the Financial Markets (“AFM”) have replaced the Central Bank of Curaçao and St. Maarten as financial supervisory authority on the BES islands.

Initially, the supervisory legislation of the BES islands consisted of converted Ordinances and regulations of the former Netherlands Antilles. The content remained largely unaltered. As of July 1, 2012, the Financial Markets (BES Islands) Act [Wet financiële markten BES; “Wfm BES”] came into force, together with certain associated regulations. This new legislation means a major change in the regulations that apply to financial institutions in the BES islands, more in particular with respect to the rules of conduct for dealing with consumers, such as information provision, duty of care, regulations on lending, and the handling of complaints.

Each institution or enterprise has either the AFM or the DCB as its first point of contact. For example, acting as a credit institution or insurer is in principle a matter for the DCB (Section 1:5 Wfm BES). Acting as a provider of credit (to consumers), adviser, intermediary, portfolio manager, authorized (sub)agent for insurance policies or for mortgages and consumer credit, or offering units in an investment institution, is in principle a matter for the AFM (Section 1:6 Wfm BES).

Small branch offices in the BES islands with a parent company in Curaçao or St. Maarten are still under supervision of the Central Bank of Curaçao and St. Maarten. These branches of financial institutions are exempt from a number of supervisory regulations. However, they must comply with the regulations to combat money laundering and the financing of terrorist activities, as well as specific conduct-of-business regulations.

Karel Frielink
Attorney (Lawyer) / Partner

(31 October 2013)
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