INTERNATIONAL ARBITRATION IN THE DUTCH CARIBBEAN
The UNCITRAL Model Law is applicable
Parties with a legal dispute can turn to the public court system to settle the dispute; however, instead of bringing a lawsuit in a public court, they can also opt for arbitration. Arbitration is a form of private dispute settlement in which the parties instruct one or more persons (arbitrators) to render a binding decision on their dispute. The arbitrators may be jurists, but they can also be laypersons. People with specific expertise or experience in a certain branch or industry are often chosen as arbitrator.
Parties can include a so-called arbitration clause in …
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THE DUTY OF CARE OF BANKS
Banks are under the obligation to exercise due care
In the Dutch Caribbean, no separately defined body of law exists with regard to the relationship between a (commercial) bank and its customer. The standard general terms and conditions applied by banks in the Dutch Caribbean have an important function in the legal relationship between banks and their customers. They enter into effect once explicitly or implicitly accepted by the customer.
According to most general conditions “the bank shall exercise due care on rendering its services. In doing so the bank shall reckon to the best of its ability with the client’s interests, …
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STATE-OWNED ENTERPRISES AND GOOD CORPORATE GOVERNANCE
Speech by Karel Frielink at the 8th Biennial Conference of the Caribbean Ombudsman Association
Ladies and Gentlemen!
First of all, I would like to thank the Curaçao Ombudsman, Alba Martijn, for inviting me to speak at this conference. Unfortunately, she will leave office in about a month. She did an excellent job, and her professionalism, dedication and impartiality leave a lasting legacy. Thank you Alba!
I have only half an hour, so I won’t travel back in time to the early days of mankind. I just start with Plato (427 – 347 B.C.E.). You may have heard of this philosopher. …
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SABBATICAL STARTED 1 OCTOBER 2014
Three months to reflect
My sabbatical started on the 1st of October 2014. I will start a new law firm in Curaçao on the 1st of January 2015. Check my blog for an update in December 2014.
In the meantime, if you want to contact me, please do so via kfrielink@bzselaw.com.
Karel Frielink
(1 October 2014)
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LEZING NIEUW VENNOOTSCHAPSRECHT SINT MAARTEN
Nieuw Boek 2 BW en nieuw personenvennootschapsrecht
Op verzoek van de Orde van Advocaten te Sint Maarten heb ik op 21 mei 2014 in de Flamboyantzaal van het Courthouse te Sint Maarten een lezing gegeven voor de rechterlijke macht en de advocatuur. De lezing ging over enkele van de wetswijzigingen die in Sint Maarten op 1 april 2014 van kracht zijn geworden.
Er is een herzien Boek 2 Burgerlijk Wetboek (Rechtspersonen) ingevoerd en een nieuwe regeling inzake de personenvennootschappen. Mijn verhaal is hier te lezen.
Karel Frielink (advocaat)
(30 mei 2014)
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TRUST INTRODUCED IN SINT MAARTEN
Brief summary of several of the powers and obligations of a Trustee
On April 1, 2014, new legislation 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 St. Maarten (a civil law jurisdiction). Similar legislation entered into force in Curaçao on January 1, 2012.
The St. Maarten Trust could serve as an important tool for various financial and commercial transactions: as a security agent, for tax and estate planning, as a pension or investment fund, asset protection, voting structures, promoting cultural, academic and charitable …
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FIRST SET OF SINT MAARTEN LAWS TRANSLATED INTO ENGLISH
Available online
37 organic laws of St. Maarten stemming from the Constitution, the explanatory memorandum to the Constitution and a glossary have been translated into British English. All translated legislations are now available on the government’s website along with the Dutch version.
The English translations are not binding in court. The original (Dutch) version of the laws will be used and referred to in court cases as Dutch is the official language used by the court. British English was used for the translations as it is the same as used by the Council of Ministers.
Prime Minister Sarah …
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DE ENE ADVOCAAT IS DE ANDERE NIET
En het ene kantoor is het andere niet…
Je moet werken vanuit je eigen identiteit en overtuiging. Dat kunnen we vandaag lezen in een interview met Mark van Eck van Business Openers in Advocatie.nl. Een kantoor dat werkt vanuit wat dat kantoor uniek maakt, waarin het zich dus onderscheidt van andere kantoren, is meer succesvol. De kern van zijn boodschap is dat je moet werken vanuit je eigen kracht, ofwel: doe waar je goed in bent. En hij bedoelt werken, niet alleen maar praten, en al helemaal niet praten over je concurrenten, laat staan negatief. Volgens Van …
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LITIGATION IN THE DUTCH CARIBBEAN
If you need a troubleshooter in your corner
The civil court system in the Dutch Caribbean (Aruba, Bonaire, Curaçao, St. Maarten, St. Eustatius and Saba) consists of three tiers; first instance cases are brought before the Court of First Instance. Appeal cases are brought before the Joint Court of Appeal. When all normal appeal procedures have been exhausted, cassation cases can be brought before the Court of Cassation or Supreme Court (Hoge Raad) in The Hague in the Netherlands.
All adversarial proceedings in the Dutch Caribbean shall be initiated by means of a petition to the Court of First Instance. …
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GOVERNMENT-OWNED COMPANIES
Opposing views on political influence
Few people would argue that the rules issued by the state (government) must also be correctly and strictly observed by that same state. It cannot be well conceived that, for example, the police and Public Prosecutor’s Office (as instruments of the state) should be allowed to violate the law with impunity.
Though there may be very different opinions about the nature and the role of the state (particularly from a philosophical and jurisprudential viewpoint), here we address the question of how we should consider government-owned companies, and in particular, what level of influence the government …
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THE INCORPORATION OF A CURACAO LIMITED LIABILITY COMPANY
Incorporating an NV or BV is not a hassle
The act on corporate law (Book 2 Curaçao Civil Code) governs the NV (‘public limited liability company’) and BV (‘private limited liability company’). These companies can be used for group finance or holding activities, (international) joint-ventures, funds, structured finance, as a Curaçao Trust and for “plain-vanilla” (local) activities.
A notarial deed is required for the formation of an NV or BV and for any amendment to articles of association (a.k.a. articles of incorporation). Formation can however, be very quick (within one or two days if necessary) and does not require many …
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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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