GOVERNMENT AND CORPORATE GOVERNANCE (I)

For Hobbes, it is certain that there must be a sovereign

According to Thomas Hobbes we all have natural passions that carry us to, among other things, partiality, pride, and revenge. The laws of nature, as Hobbes sees them, including ‘justice’, ‘equity’, ‘modesty’, and ‘mercy’, are contrary to our passions. Therefore, we will only observe the laws of nature if we have fear of some power to cause them to be observed. According to him, covenants, without the sword, are but words that lack every strength to protect a person.

See Thomas Hobbes, Leviathan, Amsterdam: Boom 2007, p. 207 and …
Read the rest »

24
May 2012
CATEGORY

Corporate

COMMENTS No Comments

CURACAO COURT INTERVENES IN POLITICAL APPOINTMENT

Political appointments unacceptable

The Court of First Instance of Curacao passed judgment on 23 January 2012 in the case of Selikor N.V. versus Drs. Ivar Asjes (JOR 2012, 105). This case is a follow-up to the judgment of the Joint Court of Appeal of the Netherlands Antilles and Aruba of 10 August 2010, JOR 2010, 296. In a nutshell the case boils down to Asjes being appointed as the managing director of waste processor Selikor N.V., but that this is an appointment pushed through politically without an open job application procedure. This deprived at least six of Selikor’s members of …
Read the rest »

12
May 2012
CATEGORY

Corporate

COMMENTS No Comments

INQUIRY PROCEDURE IN CURACAO

Important court decision for the local trust practice

On 30 March 2012 the first petition for an inquiry procedure under the new law was dealt with by the Joint Court of Justice of Aruba, Curacao and St. Maarten, and of Bonaire, St. Eustatius and Saba. Karel Frielink and Dinesh Mishre of Spigthoff had the honor of acting as lawyers for the defense … and with success! This decision is very important for the companies in Curacao and especially for the local trust offices.

As of 1 January 2012 the amended Corporate Code (Book 2 Civil Code) of Curacao entered into …
Read the rest »

02
May 2012
CATEGORY

Corporate

COMMENTS No Comments

BANKING SUPERVISION IN CURACAO AND SINT MAARTEN

Prudential rules and requirements

The Central Bank of Curacao and St. Maarten is responsible for the care of the financial system’s health, effected through on and off site inspections of the banking and other financial institutions authorized to operate in Curacao and St. Maarten.

The National ordinance on the supervision of banks and 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.

The legislation provides for reporting requirements that need to be submitted to the Central Bank of Curacao and St. Maarten. On …
Read the rest »

23
Apr 2012
CATEGORY

Legal

COMMENTS No Comments

SURPRISE RULING BY SINT MAARTEN COURT

Court introduces non-statutory transfer of employees

In the Netherlands (the European part of the Kingdom), when an undertaking (onderneming) is transferred from one person or entity to another, by operation of law the employees have an employment relationship with the new owner on the terms and conditions agreed with the old employer. For example, such a transfer of the employment relationship may occur in the case of a take-over or merger. Following the transfer, the new owner must respect all existing employment terms and conditions, including the terms of any applicable collective labor agreement. In principle, the rules with respect …
Read the rest »

04
Apr 2012
CATEGORY

Legal

COMMENTS No Comments

ASSIGNMENT OF RECEIVABLES IN CURACAO

Notification no longer necessary for perfection of assignment

Under Curacao law the transfer of ownership requires transfer of title (levering) pursuant to a valid legal title (geldige titel) by a person who has the power of disposal over the asset (beschikkingsbevoegheid) being transferred. The rules on transfer of title (levering) are equally applicable to the creation of a right of pledge over receivables. Until recently, the Curacao Civil Code, allowed for the following two methods of transfer of title (levering) of receivables:

  • By means of a deed of assignment (cessie) signed by the assignor and assignee or by the assignor …
    Read the rest »
  • 04
    Apr 2012
    CATEGORY

    Legal

    COMMENTS No Comments

    REGULATORY LEGISLATION IN CURACAO

    General requirements on the business operation

    Regulatory legislation in Curacao does not distinguish between different kinds of products, such as for instance hedge funds, but is of a more general nature. The regulatory legislation of Curacao applicable to financial institutions is divided into four categories being: credit institutions, institutional investors, investment institutions & administrators and trust service providers.

    The authority entrusted with the supervision on the financial institutions mentioned above is the Central Bank of Curacao and Sint Maarten.

    The regulatory legislation does provide for general requirements on the business operation of the financial institutes involved. The National Ordinance on …
    Read the rest »

    12
    Mar 2012
    CATEGORY

    Finance

    COMMENTS No Comments

    CURACAO TRUST LEGISLATION

    Entered into force on 1 January 2012

    On January 1st 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. This trust is a legal exception to the paritas creditorum rule as we know it and serves as an important instrument which could be used for asset segregation purposes.

    With the introduction of the Curacao Trust and the new paragraph 3 to section 231 of Book 3 of the Curacao Civil Code the need for a parallel debt construction in the …
    Read the rest »

    29
    Feb 2012
    CATEGORY

    Finance

    COMMENTS No Comments

    INQUIRY PROCEDURE INTRODUCED IN CURACAO

    The Joint Court is the forum of choice for corporate disputes

    As per January 1, 2012 the amended Corporate Code (Book 2 Civil Code) of Curacao entered into force. The new legislation introduces a so-called inquiry procedure for, amongst others, limited liability companies. The inquiry procedure (a.k.a. investigation proceedings) can result in a court ordered investigation into the affairs of a corporation.

    Shareholders of such a corporation (i.e. an NV or BV) may file a petition with the Joint Court of Justice of Aruba, Curacao and St. Maarten, and of Bonaire, St. Eustatius and Saba (the ‘Joint Court’). Pursuant to …
    Read the rest »

    27
    Jan 2012
    CATEGORY

    Corporate

    COMMENTS No Comments

    CORPORATE GOVERNANCE AND BAD HABITS

    Letter to the editor of The Daily Herald

    Dear Editor,

    According to Leroy de Weever (DP), he doesn’t need a Corporate Governance Council to come tell him how to do his job. He wants to disband the Corporate Governance Council as soon as possible.

    Corporate governance rules were designed to protect companies from politicians, in particular from the government. Government-owned companies should be kept out of the political sphere as much as possible, so that they may benefit from commercial, businesslike and market-oriented management. In doing so, they also run less of a risk of being milked …
    Read the rest »

    23
    Dec 2011
    CATEGORY

    Corporate

    COMMENTS No Comments

    APPELLATE PROCEEDINGS IN THE DUTCH CARIBBEAN

    Full review of the case

    Appellate proceedings in the Dutch Caribbean provide for a full review of the appealed decision: the grounds on which the Appellate Court can reverse the original judgment are not, as in certain other jurisdictions, limited to procedural matters. It is furthermore permissible to introduce new documentary evidence in the course of appellate proceedings. If the appealed judgment contains a final decision as regards the dispute the Appellate Court will either confirm the judgment or it will itself render a replacing decision: the case will not be referred back to the Court of First Instance.

    Furthermore, …
    Read the rest »

    21
    Dec 2011
    CATEGORY

    Legal

    COMMENTS No Comments

    ERIC GARCIA: CURACAO NOT READY FOR INDEPENDENCE

    VBC Lunch Lecture Held Wednesday, December 14, 2011

    According to Eric Garcia (CEO Girobank) “we need to be honest and acknowledge the fact that we are simply not ready for independence. Neither financially nor politically. Instead of continuously focusing on independence, our government should deal with the many macro-economic challenges our country is facing at this moment. Curacao’s growth has been lagging behind other countries in the Caribbean. Our poor economic performance is accompanied by a high unemployment rate, particularly among the youth. However, it seems as if our politicians do not perceive the low economic growth and high unemployment …
    Read the rest »

    15
    Dec 2011
    CATEGORY

    Various

    COMMENTS No Comments