CARIBBEAN COURT OF JUSTICE ON UNJUST ENRICHMENT – PRESS RELEASE

CCJ orders Guyana to repay unlawfully collected environmental tax to CARICOM beverage companies

The Caribbean Court of Justice (CCJ) on May 9, 2017 ordered repayment of unlawfully collected environmental taxes charged by Guyana against SM Jaleel & Co Ltd (SMJ) and Guyana Beverages Inc. (GBI). Guyana’s main defence that it should not have to repay the monies because the Companies had passed on the tax to their customers was rejected by the Court. The Court however agreed with Guyana that the Companies could not claim reimbursement for the full period claimed (from 2006 to 2015) but had to limit their …
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11
May 2017
CATEGORY

Legal

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PRESENTING FACTS IN DUTCH CARIBBEAN COURT PROCEEDINGS

Facts must be presented fully and truthfully

Legal proceedings are initiated by a petition filed with the Courts. A petition is a document stating, among other things, the names and addresses of the parties, the nature of the dispute (including the relevant facts of the case), the competent court, and the demand for relief.

The significance of the petition should not be underestimated. Filing a petition with the court stops the statute of limitations running for that case. A petition should clearly state the facts and specify the relief sought, in order to enable the court to render a default …
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03
Nov 2010
CATEGORY

Legal

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STANDARDS OF DUE PROCESS APPLICABLE IN THE DUTCH CARIBBEAN

The Supreme Court applies strict standards

In respect of the standards of due process applicable in the Netherlands Antilles and Aruba, the European Convention for the Protection of Human Rights and Fundamental Freedoms (EVRM) applies, including article 6, which safeguards the right of due process.

The first sentence of article 6 EVRM reads as follows: ‘In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law’.

The requirement of a ‘fair hearing’ has …
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07
Sep 2010
CATEGORY

Legal

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THE DUTCH CARIBBEAN INCORPORATION DOCTRINE

The courts apply the law of the state where the legal entity was incorporated

The Netherlands Antilles adheres to the Incorporation Doctrine (Netherlands Antilles State Ordinance of 9 September 1960, which entered into force on the 10th of September 1960, P.B. 1960, 166). According to this doctrine, the internal affairs of a corporation are governed solely by the laws of the state in which it was formally incorporated. This doctrine was confirmed in the cases of Natco Trust v. mr Thesseling q.q., Hoge Raad (Dutch Supreme Court) 20 April 1990, NJ 1991, 560; TAR-Justicia 1 (1991), p. 24-35, and IBC …
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31
Aug 2010
CATEGORY

Corporate

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LITIGATION AND SEIZURE

A comparison of Dutch and Dutch Antillean law

The intention of article 39 of the Kingdom Charter is to harmonize several fields of law, one of which being the Code of Civil Procedures, in the three territories of the Kingdom. There are, however, a number of differences between Dutch and Dutch Antillean law. One of the differences concerns the  procedure of imposing a prejudgment attachment on assets of a debtor.

If a creditor is of the opinion that he has a legitimate claim on the assets of a debtor, he can request that the court orders a prejudgment attachment on such assets. …
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13
Jul 2010
CATEGORY

Legal

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PREJUDICED INTERESTS OF MINORITY SHAREHOLDERS IN THE NETHERLANDS ANTILLES

They may force the company to take-over their shares

Article 2:251(1) of the Netherlands Antilles Civil Code reads as follows: “A shareholder of registered shares, whose rights or interests are prejudiced to such an extent, by the conduct of the company or one or more co-shareholders, that a continuation of his shareholding cannot reasonably be required of him, may institute a claim against the company for withdrawal, demanding that his shares be acquired against payment in cash”.

This provision may only be successfully triggered in exceptional circumstances. This could be the case if the company or co-shareholders have a structural policy …
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13
Mar 2010
CATEGORY

Corporate

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THREE QUESTIONS ON ARUBAN BANKRUPTCY LAWS

FAQ

Question 1

In which cases and by whom may bankruptcy proceedings be initiated in accordance with Aruban bankruptcy law?

Filing for bankruptcy may be done either by the debtor itself or by one or more of its creditors. If the debtor is a company, generally speaking the managing directors do not have the authority to petition for bankruptcy of the company without authorization thereto from the general meeting.

The pre-requisites for making a bankruptcy order on application, regardless of whether the application is made by the debtor or by any of the other above mentioned persons, is, that the …
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13
Feb 2010
CATEGORY

Legal

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LIFTING OF AN ATTACHMENT UNDER THE LAWS OF THE DUTCH CARIBBEAN (II)

Defendant has to show that the claim is invalid

Article 705, Paragraph 2 of the Netherlands Antilles Code of Civil Procedure states that the lifting of an attachment may be ordered if it appears summarily that the claim is invalid.

According to existing case law of the Dutch Supreme Court (see for instance Supreme Court dd June 14, 1996, NJ (Dutch Law Reports) 1997, 481), this means that the plaintiff (i.e. the party requesting the attachment be lifted in summary proceedings), with due regard for the limitations of summary proceedings, should establish a prima facie case (aannemelijk maken) that the …
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15
Aug 2009
CATEGORY

Legal

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LIFTING OF AN ATTACHMENT UNDER THE LAWS OF THE DUTCH CARIBBEAN (I)

Freezing assets is rather easy

Under Netherlands Antilles law any party with a prima facie claim may file a petition for a court order granting an attachment, which petitions are generally granted, solely based on the allegations in the petition. It is not required, under Netherlands Antilles law, that the litigant needs to demonstrate that, in absence of an attachment, there is a risk that the defendant would have insufficient assets to pay a judgment, as a threat of evading a judgment (by moving assets etc.) does exist.

Only with respect to some types of assets, such as registered shares …
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08
Aug 2009
CATEGORY

Legal

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SUMMARY PROCEEDINGS IN THE DUTCH CARIBBEAN (IV)

Only condemnatory judgments are allowed

As far as the form and the content of a decision in summary proceedings is concerned, the judge has great latitude in reaching a decision. A guiding principle for the judge will always be a policy of not going beyond what might be necessary or well-balanced as far as the decision in the procedure on the merits is concerned. In principle, however, the judge may order any measure provided that the measure serves to safeguard a right or a legally recognized interest.

Legal literature is of the opinion that in summary proceedings only condemnatory judgments …
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01
Aug 2009
CATEGORY

Legal

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SUMMARY PROCEEDINGS IN THE DUTCH CARIBBEAN (III)

Judge will balance interests

In general the court will take into account the detriment which the plaintiff in summary proceedings will suffer if he has to wait too long for a judgment in a procedure on the merits.

In summary proceedings the judge needs to balance the interests of the plaintiff and the defendant. In practice, this balancing of interests plays an important role in the procedure. The judge may dismiss a claim in summary proceedings if the consequences for the defendant would be too drastic. An important factor will be the probability of a positive or negative decision on …
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25
Jul 2009
CATEGORY

Legal

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SUMMARY PROCEEDINGS IN THE DUTCH CARIBBEAN (II)

Urgency is a requirement

Provisional measures may always be given in summary proceedings in civil cases if the claim meets the following three conditions: (i) there is an urgent interest at stake; (ii) the interests of both parties needs to be balanced; and (iii) the balancing of interests justifies a decision in summary proceedings.

The fact that the judge in summary proceedings (hereafter: “the judge”) is formally competent to render a decision, does not imply that he will accept the claim or will decide in favor of it. The nature of summary proceedings implies that the case not only needs …
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18
Jul 2009
CATEGORY

Legal

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