In particular circumstances this rule may be set aside

Generally speaking, the management board of a company (NV or BV) is not entitled to sell the company’s business or a substantial part thereof, without the approval of the shareholders’ meeting. The Enterprise Chamber of the Court of Appeal in Amsterdam confirmed this in its decision of 27 February 2014 (ECLI:NL:GHAMS:2014:597; JOR 2014, 160). According to the Court, (the managing board of) a legal entity that intends selling all shares in its subsidiaries must observe the requirements for adopting a resolution to liquidate that entity.

According to Section 2:7(2) of the Civil Code of Curaçao, St. Maarten and the BES-islands, any rule imposed, for instance, on  board members or shareholders of a limited liability company, will not be deemed to apply, to the extent, in the given circumstances, that these would be unacceptable in terms of reasonableness and fairness.

Therefore, in the event an immediate and urgent decision is absolutely necessary for the survival of the company, selling the company’s business or a substantial part thereof without the required approval may nevertheless be justified. However, only in very special circumstances may the principles of reasonableness and fairness set-aside applicable rules.

Karel Frielink
(Attorney/Lawyer, Partner)

(11 November 2015)


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