SECURED CROSS-BORDER FINANCING TRANSACTIONS

Trust and parallel debt

Cross-border financing transactions have links with different jurisdictions, and may include both civil law and Anglo-Saxon jurisdictions. Some jurisdictions do and some don’t accept that it is possible to grant security to a security agent (e.g. a special purpose vehicle or a trust) in order to secure money owed to several lenders (syndicated loan / facility).

As far as secured syndicated facilities are concerned, it is not uncommon that one or more lenders change. It is important that despite fluctuations in the group of lenders the security remains valid, without the need to re-establish (or re-register) …
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23
Feb 2014
CATEGORY

Finance

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THE CURACAO TRUST BECOMES MORE AND MORE POPULAR

Curaçao Trust could be used for asset segregation purposes

According to Professor of Law David Hayton, an Anglo-Saxon trust arises from the settlor’s transfer of title to property to another person, intending that person to be a trustee-manager of it for the benefit of beneficiaries or for a charitable or other permitted purpose. Trusts are founded on a transfer of title to property: contracts are not. Professor Hayton:

Such a contractual concept inevitably leads – or rather misleads – civil lawyers to consider that the Anglo-Saxon trust is simply a glorified form of contract between the settlor …
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08
Feb 2014
CATEGORY

Finance

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FATCA AND THE US – DUTCH INTERGOVERNMENTAL AGREEMENT

Dutch IGA published

In connection with the Foreign Account Tax Compliance Act (“FATCA”), the government of the Netherlands entered into a Model 1 Intergovernmental Agreement (“IGA”) with the United States (click here). Under the Dutch IGA, Netherlands financial institutions would report required information to the Netherlands tax authorities, followed by an automatic exchange of the reported information to the IRS.

The Dutch IGA, entered into on December 18, 2013, is substantially similar to the Model 1A IGA that includes a reciprocal approach for the sharing of information between the two governments. Article 3 paragraph 7 of the …
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04
Feb 2014
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Finance

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RISK MANAGEMENT AND ASSET PROTECTION

Curaçao offers legitimate risk management solutions

Why would one consider an asset protection strategy? There are individuals and business entities all around the world not trusting their government (e.g. fear for expropriation or nationalization by their government). Or they are seeking legitimate protection from any future downturns. Or they do not want the world to know about their wealth and do want to protect their privacy as much as possible. Asset protection also can be an aspect of business, personal or estate planning.

It is quite common that limited liability companies are used for operating a business. The alternative, a …
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02
Feb 2014
CATEGORY

Finance

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DUTCH CARIBBEAN BANKS AND REGULATORY ISSUES

A bank has less freedom than an ordinary legal entity

What would be the requirements, from a regulatory point of view, if a Curaçao or St. Maarten bank wished to sell its entire business or a substantial part thereof? Would it require approval from the Central Bank of Curaçao and St. Maarten (‘Centrale Bank van Curaçao en St. Maarten’)?

Generally, if the activity at a bank is characterized as some form of financial reorganization, for example, the prior approval of the Central Bank is required. The bank is also obliged to immediately inform the Central Bank in writing of any …
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27
Jan 2014
CATEGORY

Finance

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CREDIT INSTITUTIONS IN THE BES ISLANDS

Strictly regulated

With effect from 1 July 2012, the Financial Markets (BES Islands) Act [Wet financiële markten BES; “Wfm BES”] came into force, with the associated subordinate regulations. The Wfm BES applies to financial institutions in the BES islands (Bonaire, St. Eustatius and Saba). There are several categories of financial institutions, including credit institutions (banks).

A “credit institution” (kredietinstelling) is a party engaged in the business of obtaining callable funds (opvorderbare gelden) from outside a restricted circle (besloten kring) and from parties other than professional market parties (professionele marktpartijen) and of the extension of loans (kredietuitzettingen) at such party’s (own) …
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13
Nov 2013
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Finance

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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 …
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31
Oct 2013
CATEGORY

Finance

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ELECTRONIC MONEY INSTITUTIONS IN ARUBA

A license is required

The European Central Bank defines e-money as follows (a non-legal definition): “E-money can be defined as any amount of monetary value represented by a claim issued on a prepaid basis, stored in an electronic medium (for example, a card or computer) and accepted as a means of payment by undertakings other than the issuer, predominantly for small-value transactions (for example, the settlement of modest transactions over the Internet and of parking or telephone charges and payment for public transport services).” (Electronic Money Institutions. Current trends, regulatory issues and future prospects. Legal Working Paper Series, No. 7/2008).


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24
Oct 2013
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Finance

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ANTI-MONEY LAUNDERING LAWS IN CURACAO

Money laundering is prohibited

Title XXXI of the Penal Code of Curaçao basically prohibits any type of money laundering.

The National Ordinance on the Reporting of Unusual Transactions (NORUT) obliges service providers acting in the course of a business or profession, to report unusual transactions.

The National Ordinance on Identification of clients when Rendering Services (NOIS) requires any service provider who is acting in the course of a profession or business, to establish the identity of a customer before providing any “financial” service.

Generally, these Ordinances apply when services are conducted in or from Curaçao. If a foreign financial institution does …
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20
Sep 2013
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Finance

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ASSET PROTECTION IN CURACAO

Curaçao: a jurisdiction not to be missed

A Curaçao private foundation or a trust is often used for asset protection and privacy purposes. The Curaçao private foundation and the Curaçao trust must be set up by a notarial deed executed before a civil law notary in Curaçao. Both the private foundation and the trust are a very flexible solution for asset protection and privacy purposes. A private foundation, for instance, can be easily implemented in international holding structures through Curaçao and is very suitable for family asset protection. By means of a letter of wishes or provisions in the articles …
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20
Aug 2013
CATEGORY

Finance

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HEDGE FUNDS FLOCK TO CURACAO

Citco once again most popular administrator for hedge funds

WILLEMSTAD – Citco is once again the most popular administrator for hedge funds, topping the annual Absolute Return ranking for the fifth consecutive year.

The international firm, which has led the survey every year since its inception, further increased its market share to 23.03%, approximately 1.2 percentage points more than last year.

Citco has kept its lead by investing aggressively in new products such as Treasury and collateral functions, and news standalone risk management software in the Americas and Europe, said global head of sales Jay Peller. Even among startups, the …
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13
Aug 2013
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Finance

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THE CURACAO TRUST

Can be used as protected or segregated cell company

On 1 January 2012, new legislation entered into force according to which it is now possible to set up a trust (Curacao Trust) similar to the trust in Anglo-Saxon common law jurisdictions. The introduction of the Curacao Trust serves as an important instrument which could be used within financial transactions in the Caribbean as a significant part of these transactions are initiated from common law jurisdictions.

The Curacao Trust can be used for different purposes, such as, for example:

  • To set aside capital for children’s upbringing, education or maintenance
  • Estate planning

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    02
    Aug 2013
    CATEGORY

    Finance

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