BEARER SHARES IN A CURACAO COMPANY
Registered shares must be issued first
According to the Curaçao act on corporate law (Book 2 Curaçao Civil Code) it is not possible to (directly) issue bearer shares.
A company with only bearer shares has no shareholders’ register. Only a public limited liability company (NV) may issue bearer shares, provided that registered shares be issued first and that they have been fully paid up. These may subsequently be converted into bearer shares. The issuance (of registered shares) requires a ‘deed of issuance’, which must be signed by both the company and the subscriber. Without such a deed the subscriber does …
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PREJUDGMENT ATTACHMENT IN CURACAO
A petition is only marginally examined
How easily can one obtain permission to freeze assets? The Curaçao Code of Civil Procedure provides the possibility to seize and freeze assets in anticipation of a court order to pay a certain amount or to return certain goods. This legal remedy is referred to as prejudgment attachment or seizure (“conservatoir beslag“).
In general, a petition for the attachment of assets is (more or less) only marginally examined by the court and will therefore be granted in most cases. The claimant must then submit a writ of summons or claim form to the court, …
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LAWYERS AND THE INTERNET: BACK IN TIME
A 1996 Tour of some interesting WWW sites for Lawyers
In 1996 Delia Venables wrote an internet tour for lawyers (‘Around the World in 80 Minutes‘, Web Review, 1996 (3) The Journal of Information, Law and Technology; click here). She referred to the website of the Daily Telegraph as a good example of how the WWW could be made really useful and interesting. She mentioned that the USA was already a long way ahead of Europe in the provision of legal materials on the Internet. She also mentioned the International Law Page created by a law student …
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ENQUETEPROCEDURE OVERHEIDSVENNOOTSCHAPPEN CURACAO
Behandeling bij het Gemeenschappelijk Hof van Justitie
Op 5 juni 2013 heeft bij het Gemeenschappelijk Hof van Justitie van Aruba, Curaçao en Sint Maarten en van Bonaire, Sint Eustatius en Saba de behandeling plaatsgevonden van het verzoek van het Openbaar Ministerie om een enquête op grond van het Burgerlijk Wetboek van Curacao te gelasten naar het beleid en de gang van zaken bij de overheids NV’s Aqualectra, Curoil/Curgas en Refinería di Kòrsou (RdK). Klik hier voor de beschikking van het Hof van 15 juli 2013 en klik hier voor de Extra van 16 juli 2013.
Fundashon …
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CROSS BORDER CONVERSION AND MERGER (part 10)
Legal entities under supervision
So far we have only looked at legal entities not under the supervision of the Central Bank of Curacao and St. Maarten (CBCS). Just a few words about institutions that are under supervision.
The following applies to banks with a registered seat in Curacao for instance. These entities have a license from the CBCS pursuant to the Ordinance on the Supervision of Bank and Credit Institutions 1994 (Landsverordening toezicht bank- en kredietwezen 1994: ‘Ltbk’). The prior consent of the Central Bank is required for each amendment to the articles of association (Article 23 paragraph 1 Ltbk). …
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CROSS BORDER CONVERSION AND MERGER (part 9)
The cross-border merger
We now look at the cross-border legal merger. Before 1 January 2012 the possibility already existed in Curacao that in connection with a merger, a foreign legal entity as the disappearing legal entity could merge with a comparable legal form of Book 2 of the Civil Code on the condition that the law governing that foreign legal entity was not incompatible with the merger and the manner in which it was brought about (Section 2:323a of the Civil Code). This inbound merger possibility still exists.
Since 1 January 2012 it is also possible that a legal entity …
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CROSS BORDER CONVERSION AND MERGER (part 8)
Changes in Curacao as of 1 January 2012
The most important amendment in the Curacao provision with regard to the conversion of an NV or BV into a foreign legal entity (outbound) is that the requirement of the personal notice of liability by managing directors and shareholders has been removed as from 1 January 2012 onwards, except for the case mentioned below. This provision has been replaced by the possibility for creditors or contractual counterparties of the company wishing to convert into a foreign legal entity to lodge an objection on the grounds that they will be prejudiced in their …
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CROSS BORDER CONVERSION AND MERGER (part 7)
The conversion of or into a foundation
If a foreign legal entity wants to be converted into a Curacao foundation (inbound) the Court in Curacao must grant consent (Section 2:303 subsection 2 of the Civil Code). I was unable to find any explanation of this in the Explanatory Memorandums of Book 2 of the Civil Code of 2003 and 2010.
That authorization by the court is required for the conversion of a foundation into another – whether or not foreign – legal form, can certainly be explained (Section 2:306 subsection 2 in conjunction with Section 2:300 subsection 4 of the …
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CROSS BORDER CONVERSION AND MERGER (part 6)
The conversion under the law of Curacao
Back to Curacao and the doctrine of conversion. I only intend to discuss several aspects of this. The conversion has been provided for in Sections 2:300 et seq. of the Civil Code. The conversion of a foreign legal entity into a Curacao entity has been provided for in Section 2:303 of the Civil Code (immigration).
The cross-border conversion of the NV and the BV into a foreign legal entity has been provided for in Sections 2:304 and 2:305 of the Civil Code, and the provisions for a foundation which wants to be converted …
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CROSS BORDER CONVERSION AND MERGER (part 5)
Aruba
Aruba has already been ‘a foreign country’ for quite some time compared with Curacao for instance. After Aruba left the Netherlands Antilles, a transfer of seat to or from the Netherlands Antilles was no longer possible. If there was a desire to transfer the seat of a company registered in Aruba to Curacao or the other way around, this had to be done via a detour for instance first a transfer of seat to the Cayman Islands and then a transfer through to Curacao or Aruba respectively.
On 1 January 2009 the company with limited liability (VBA) was introduced …
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CROSS BORDER CONVERSION AND MERGER (part 4)
From Bonaire to the Netherlands?
In 2011 attempts were made to transfer a BV with its registered seat in Bonaire to Rotterdam by means of an amendment to the articles of association whereby the old registered seat was replaced by the new one and the articles of association of the BV were organized according to the Dutch Book 2 of the Civil Code. The Chamber of Commerce in Rotterdam refused the registration of that BV. The Chamber of Commerce held the view that this course of events contravened the Act of the Kingdom on the Voluntary Transfer of Seat and …
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CROSS BORDER CONVERSION AND MERGER (part 3)
Within the Kingdom
Under the Transfer of Seat Ordinance it is for instance impossible to transfer to Aruba or St. Maarten. Article 38 paragraph 4 of the Charter of the Kingdom of the Netherlands provides that the subject of transfer of seat of legal entities must be regulated in a Kingdom Act. Agreement between the governments of the countries is required for this provision. For as long as that subject has not been regulated in a Kingdom Act, a transfer of seat within the Kingdom is not possible; because cross-border conversion can be materially equated with it, it is assumed …
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