INSOLVENCY AND LIABILITY
Not (or late) filing for bankruptcy
In Curaçao, there is no statutory obligation for managing directors of a company to file for the bankruptcy of the corporation. Therefore, managing directors are not responsible to the creditors for damages sustained by them as a result of any ‘late’ filing for bankruptcy. There is no such obligation for shareholders of a corporation either.
However, creditors of the corporation may hold a director liable on the basis of tort if he entered into a transaction on behalf of the corporation while he knew, or should reasonably have known, that the corporation would not …
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PROPOSED REVIEW DUTCH CARIBBEAN LEGISLATION ON REPRESENTATION
Restrictions in managing authority work through into the representative authority
Earlier in 2010, a draft bill was proposed to amend the Corporate Code (Book 2 Civil Code) of Curacao, St. Maarten, Bonaire, St. Eustatius and Saba (which formerly constituted the Netherlands Antilles). Hopefully, the Bill comes into force in 2011. Some of the proposed changes will be discussed here.
Restrictions of the managing authority can arise from a by-law or a corporate agreement. Individual Managing Directors exercise their powers with due observance of the resolutions of the Management Board (Article 2:8 paragraph 2 Civil Code). Subject to restrictions arising from …
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ARUBAN LAW REGARDING CORPORATE AUTHORITY
The Aruba Trade Register should be checked
The laws of Aruba provide that, subject to restrictions laid down by any statutory provision or a corporation’s articles of association, the board of directors of a company shall be competent to represent the company, i.e. a limited liability company (NV, AVV or VBA). In the event of the company having several managing directors, any managing director shall be competent, insofar as not otherwise provided by the articles of association (or sometimes bylaws). The articles of association may also grant other officers, to be designated by or pursuant to the articles, representative authority, …
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AMSTERDAM COURT OF APPEAL ON LIABILITY OF TRUST DIRECTORS
Trust directors not treated differently from regular directors
The board of directors of an NV or BV may contractually agree to a limitation of its powers to manage the company. Such arrangements are typical for trust offices engaged by a foreign ultimate beneficiary to render services to ‘his’ company, i.e. the client of a trust office. In principle, any contract a board of directors enters into binds the board and thereby limits its power. However, notwithstanding such a contract, it is still the board of directors that is in charge of managing the affairs of the company.
A distinction should …
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TRANSACTIONAL POWER OF THE MANAGING BOARD OF A DUTCH CARIBBEAN CORPORATION (I)
Limitations must be disclosed to have effect
Netherlands Antilles law provides that, subject to restrictions laid down by the Netherlands Antilles Corporate Code or a corporation’s articles of association, the board of directors of a corporation shall be competent to represent the corporation, e.g. a limited liability company (‘naamloze of besloten vennootschap’; NV or BV). In the event of several managing directors, any managing director shall be competent, insofar as not otherwise provided for by the articles of association.
Under Netherlands Antilles law, information required to be disclosed pursuant to the Civil Code, for instance (i) the identities of the …
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THE FORMATION OF A PRIVATE FOUNDATION IN THE DUTCH CARIBBEAN
Formation requires a notarial deed
A Private Foundation (PF) is formed by a notarial instrument executed by a Netherlands Antilles civil law notary and registered in the Register of Foundations at the Chamber of Commerce.
The articles of incorporation of the PF includes the name of the PF and the word PF (or a translation thereof) as part of the name, the object(s) of the PF, the manner of appointment and dismissal of board members, the Island territory where the PF has its seat and the allocation of any liquidation surplus in the case of dissolution of the PF.
The …
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DIRECTORS OF A DUTCH CARIBBEAN COMPANY
May a director resign when he chooses to do so?
A Netherlands Antilles company (NV or BV) must have either a local director or a local representative. A company is not required to have more than one director, unless the articles of association provide otherwise. The Netherlands Antilles Corporate Code does not oblige the shareholders to appoint new board members once all board members have resigned.
Pursuant to Article 2:12(1) Netherlands Antilles Civil Code, the articles of association of the company must provide for the manner in which provisions are made for the interim management and administration of the company …
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