Only under exceptional circumstances

In terms of “piercing the corporate veil” and shareholders’ liability, the laws of the Netherlands and Aruba are nearly identical. As far as a tort matter concerns the laws of Aruba, Dutch case-law and Dutch legal literature should be considered as well.

In exceptional cases shareholders of an Aruba company can be liable for the company’s debts and obligations. Generally, two grounds for such liability are mentioned: a tort (onrechtmatige daad) committed by the shareholder and an “alter ego” situation (vereenzelviging) as regards the shareholder and his company. Under Aruba law, both can be categorized under the heading “lifting or piercing the corporate veil”, simply because, in my opinion, under Aruban law, piercing the corporate veil in most cases goes hand in hand with the concept of tort.

Aruba has opted for a connection of corporate veil piercing issues to the lex societatis. According to this doctrine, the internal affairs of a company are governed solely by the laws of the state in which it was formally incorporated. The law of incorporation governs the company’s formation, its shares, the powers, duties and liabilities of shareholders (as such) and the (members of the) board of directors and board of supervisory directors (as such), its dissolution, and determines questions of locus standi (i.e. whether or not the company has the right to bring proceedings) and legal personality. In this respect, it is of no relevance in which country the ‘real seat’ of a company is located or in which country or countries the shareholders of the company are residing or established.

From an Aruba law perspective whether or not foreign shareholders of an Aruban company could be held liable for the company’s debts or obligations based on the concept of “piercing the corporate veil” must be decided in accordance with Aruban law because the company has its seat in Aruba.

Karel Frielink
Attorney (Lawyer) / Partner

(8 November 2013)

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