CONFLICTING INTERESTS IN CURACAO INSOLVENCY LAW (part 2)

The liability of the receiver

The special characteristics of the duty of a receiver bring with them that his liability, if any, must be assessed against a standard of due care which has been tuned to this. This standard boils down to the fact that a receiver ought to act as can reasonably be required of a receiver having sufficient insight and experience and performing his duties conscientiously and with dedication. Knowledge and experience exceeding the minimum requirements can to a certain extent color the standard in a concrete case: after all there is nothing against taking as a starting …
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21
Dec 2012
CATEGORY

Legal

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FATUM HOLDING ACQUIRES ROYAL & SUN ALLIANCE (ANTILLES)

Press release

Fatum Holding N.V. (Fatum), today announced the acquisition by Fatum of 100% of the issued share capital of Royal & Sun Alliance Insurance (Antilles) N.V. from the RSA Group and Maduro & Curiel’s Bank.

The financial terms of the transaction are not being disclosed at this time. The successful completion of this transaction is subject to all necessary approvals from the Regulators in Curacao, Sint Maarten, Aruba and the islands of Bonaire, Sint Eustatius and Saba.

RSA (Antilles) is a major provider of General Insurance products and services in the Dutch Caribbean, and is jointly owned by the …
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20
Dec 2012
CATEGORY

Corporate

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CONFLICTING INTERESTS IN CURACAO INSOLVENCY LAW (part 1)

The receiver is sometimes described as an octopus

The receiver (trustee in bankruptcy) as an octopus: this means that in connection with each appointment he is in a way thrown in at the deep end because he has to make himself familiar with the relevant issues in a very short period and because of the number of interests involved in a bankruptcy and these being partly contradictory he often needs eight arms in order to cope with all the requirements and demands. One could just as well describe the receiver as a jack-of-all trades.

The receiver must make choices and …
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14
Dec 2012
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Legal

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SYMPOSIUM ON 35 YEARS OF THE CURACAO BAR ASSOCIATION (16 NOVEMBER 2012)

Presentation by Karel Frielink – President (part 2)

Civil Litigation Law should be better

So now I will deal with the subject of this symposium. I begin straight away with a provoking statement: Our Civil Litigation Law should be better. This goes further than it ‘could’ be better. However, we shouldn’t only think about the question of how the law should be improved but also about the question of whether or not judges and advocates (attorneys, lawyers) are operating optimally and whether adjustments to the system can contribute to a better operation and to a better administration of justice. And …
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07
Dec 2012
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Legal

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SYMPOSIUM ON 35 YEARS OF THE CURACAO BAR ASSOCIATION (16 NOVEMBER 2012)

Presentation by Karel Frielink – President (part 1)

Ladies and gentlemen!

Today the symposium on the “Seven years of the new Code of Civil Procedure” is taking place in honor of the 35th anniversary of the Curacao Bar Association. The 35-year existence of the Bar is an occasion for celebration which is quite rightly paid attention to by focusing on an important subject: litigation law. I will begin by telling you something about the early period of the Bar. After this and anticipating the discussions this afternoon, I will broach two subjects of litigation law which are eligible for improvement. …
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30
Nov 2012
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Legal

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LEGAL ACTION AGAINST A CURACAO TRUSTEE

Who can bring an action?

If the trust assets have been prejudiced, the action can be brought by any co-trustee. Unless provided for to the contrary in the trust deed the action can also be brought by a protector or beneficiary on the understanding that the compensation is paid as soon as possible to a Trustee not being the Trustee who violated his duties (Section 3:143 subsection 4 Curacao Civil Code {‘CCC’}). The question is to whom the protector has to pay the compensation if there is no co-trustee. This question is not answered in legislation, but in practice in …
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22
Nov 2012
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Legal

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MY VIEW ON THE LIABILITY OF A CURACAO TRUSTEE

The Reference Trustee

The trust originates from Anglo Saxon law. On designing the Curacao trust system the systems in other jurisdictions have obviously been studied. However, the Curacao trust is a civil law and not a common law trust. Therefore in answering the question of the (possible) extent of the liability as given shape in Book 3 Curacao Civil Code (‘CCC’), a connection should be sought with the law of Curacao (and elsewhere in the Kingdom) and not with foreign legal systems.

The fact that the Trustee has a position of trust, as laid down by law, does not, according …
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15
Nov 2012
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Legal

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CURACAO TRUSTEE HAS A DUTY OF CARE

Trustee is liable if he fails to exercise due care

A duty of care is justified in those cases where someone entrusts his financial or other interests to another or takes care of these himself with the assistance of the other, particularly because that other possesses more knowledge and experience in that field. The law formulates as a general standard that the Trustee is liable if he fails to exercise due care as a good Trustee unless he cannot be blamed for the failure (Section 3:143 subsection 1 Curacao Civil Code {‘CCC’}). This relates to a duty arising from the …
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08
Nov 2012
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Legal

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THE CURACAO TRUSTEE

Breach of trust results in liability

Usually a Curacao trust office (service provider) uses one of its own public limited liability companies (NVs) or private companies with limited liability (BVs) to provide the services. This in-house NV or BV will then for instance become the managing director of the client company. A trust office offering services as a Trustee will usually also do this in the form of an in-house NV or BV who will act as the Trustee. The Trustee will be able to fulfill this role with regard to multiple trust assets.

For third parties it is important …
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01
Nov 2012
CATEGORY

Legal

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POWERS AND OBLIGATIONS OF A CURACAO TRUSTEE

Brief summary

On 1 January 2012, new legalization entered into force pursuant to which it is now possible to set up a trust, similar to the trust in Anglo-Saxon common law jurisdictions, in Curacao (a civil law jurisdiction).

Here follows a brief summary of several of the powers and obligations of a Trustee:

  • the Trustee is entitled and obliged to administer the trust assets with regard to which he is obliged to render account (Section 3:127 subsection 2 under c Curacao Civil Code [‘CCC’]);
  • the Trustee is obliged to administer the trust assets according to the law and the provisions …
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  • 25
    Oct 2012
    CATEGORY

    Legal

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    TYPES OF LIABILITY IN CURACAO

    A three-part distinction

    With regard to liability a three-part distinction can be made. The first distinction relates to the basis of the liability: liability pursuant to a contractual relationship (the attributable failure in this respect) and liability pursuant to a wrongful act.

    Another distinction relates to the personal liability (thus for the party’s own actions or omissions) and vicarious and/or strict liability: liability for or the acts and omissions of others (vicarious liability) or liability for certain things that happen (strict liability).

    For example, employers can be held vicariously liable for certain actions of their employees. According to the Curacao …
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    18
    Oct 2012
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    Legal

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    CURACAO CREDIT INSTITUTIONS

    Prudential supervision

    The Curacao regulatory legislation applicable to credit institutions provides for requirements with regard to the prudential supervision in general. Such prudential supervision sees to the liquidity and solvency position of a bank without going into further detail for instance as to the safekeeping of assets or maintaining of accounts of third parties.

    The Curacao legislation provides for reporting requirements that need to be submitted to the Central Bank of Curacao and St. Maarten (CBCS). However, these requirements apply only to banks regulated in Curacao.

    On the basis of such reports and accounts the CBCS has the authority to …
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    12
    Oct 2012
    CATEGORY

    Legal

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