UN PROSPERO AÑA NOBO 2016

Een voorspoedig Nieuwjaar

Un Próspero aña nobo

A Prosperous new year

Un próspero Año Nuevo

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BZSE-Nieuwjaarswens-DEC15

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01
Jan 2016
CATEGORY

Various

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MAKING FUN OF LAWYERS

Makes me smile…

The image that people have of lawyers is usually determined by coincidences. This may be a personal experience with their own lawyer or that of the counterparty. But even more will the image be determined by the relatively small group of lawyers who get publicity.

A. Pitlo (Evolutie in het privaatrecht, [Evolution in private law] Groningen: H.D. Tjeenk Willink 1972, p. 102) speaks with regard to certain lawyers about the ‘half-intellect’ that by intellectualism must succeed in being kept up towards the masses. Publications that are extremely critical of lawyers can date from any time and the first …
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28
Dec 2015
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THE GOOD, THE BAD AND THE BOSS

Three different personas during testimony

There are matters to consider before you enter a courtroom as plaintiff, defendant or witness: for instance, what you say, your body language, how you present yourself and what you wear. The judge will be watching you. You don’t believe me? Read for yourself!

The judge about the defendant:

Murdock tried out three different personas during his testimony. During his deposition, he showed the true force of his domineering personality. During the first day of trial, Murdock tried to appear more reasonable and conciliatory on direct, but on cross-examination, he could not resist being combative. He denied …
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15
Dec 2015
CATEGORY

Legal

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KAREL FRIELINK FULL MEMBER OF STEP

Trust and Estate Practitioner

The Society of Trust and Estate Practitioners (STEP) was founded in 1991 by George Tasker as a hub for local forums of practitioners. STEP is the international professional body for those who work in the trust industry and the (often overlapping) field of estate administration. Its members are mainly solicitors, barristers, attorneys, accountants, trust officers and trust administrators as well as banking and insurance professionals in the trust field.

The main focus of the organization is to administer the examination process to ensure the quality of the membership, to provide educational and networking opportunities …
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10
Dec 2015
CATEGORY

Legal

COMMENTS No Comments

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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21
Nov 2015
CATEGORY

Finance

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LIABILITY OF COMPANY DIRECTORS

No derivative suit

It is considered a general rule of Dutch Caribbean corporate law that the management board (a.k.a. board of directors) must act in the best interests of the company (an NV or BV) in the performance of its duties, even when acting on instructions from others (e.g. shareholders). This includes the interests of the shareholders, the employees and, according to most legal writers, the creditors of the company.

Under the Civil Codes of Curacao, St. Maarten and the BES-islands (Bonaire, St. Eustatius and Saba), directors of a limited liability company (naamloze vennootschap or besloten vennootschap) are personally and …
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18
Nov 2015
CATEGORY

Corporate

COMMENTS No Comments

BZSE – ST. MAARTEN DAY AD

No ship-jumpers!

Have you seen our ad in the newspaper earlier this week?

 

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(13 November 2015)

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13
Nov 2015
COMMENTS No Comments

SHAREHOLDER APPROVAL REQUIRED FOR SELLING ALL ASSETS

In particular circumstances this rule may be set aside

Generally speaking, the management board of a company (NV or BV) is not entitled to sell the company’s business or a substantial part thereof, without the approval of the shareholders’ meeting. The Enterprise Chamber of the Court of Appeal in Amsterdam confirmed this in its decision of 27 February 2014 (ECLI:NL:GHAMS:2014:597; JOR 2014, 160). According to the Court, (the managing board of) a legal entity that intends selling all shares in its subsidiaries must observe the requirements for adopting a resolution to liquidate that entity.

According to Section 2:7(2) of the Civil …
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11
Nov 2015
CATEGORY

Corporate

COMMENTS No Comments

LEGAL DOCUMENTS ARE HARD TO READ DUE TO LEGALESE LANGUAGE

Lawyers must learn to communicate with their clients

Communication skills are particularly important for lawyers. On the one hand lawyers have to accurately debate legal issues with like-skilled/trained people and on the other hand they have to explain all this to people without any legal education, many of which are vulnerable. That is not as easy as it sounds: legalese vs plain language.

I know that many people are dissatisfied and frustrated by lawyers’ communication efforts. I asked one of my networking contacts what she could teach a lawyer / attorney. Her response:

“I have worked with lawyers in my …
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02
Nov 2015
CATEGORY

Legal

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KNOWLEDGE CEO CAN BE IMPUTED TO CORPORATION

Interesting opinion of the United States Court of Appeals for the Ninth Circuit

Knowledge can be both actual and constructive. The question is under what circumstances actual knowledge, for instance the CEO’s knowledge, can be imputed to the corporation. This question was addressed by the Ninth Circuit in its opinion of 23 October 2015 (securities class action lawsuit against ChinaCast Education Corporation et al).

Summary (prepared by court staff):

Reversing the dismissal of a securities fraud claim, the panel held that a CEO’s fraud could be imputed to his corporate employer, even though his alleged embezzlement and misleading …
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26
Oct 2015
CATEGORY

Corporate

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THE DIFFICULTY OF ENFORCING JUDGMENTS

Michael Redman on the challenges of enforcing judgments

Michael Redman of Burford Capital has written an interesting article on the challenges of enforcing judgments, which was published in the October 2015 issue of Litigation Funding (click here).

As far as the Dutch Caribbean (Aruba, Bonaire, Curaçao, St. Maarten, St. Eustatius and Saba) is concerned, the enforcement of a judgment rendered by for instance an English court will be subject to the provisions of the Convention between the Kingdom of the Netherlands and the United Kingdom and Northern Ireland regarding Mutual Recognition and Enforcement of Judgments in …
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13
Oct 2015
CATEGORY

Legal

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ATTACHMENTS UNDER THE LAWS OF CURACAO (part II)

Defendant has to show that the claim is invalid

Article 705, Paragraph 2 of the Curaçao Code of Civil Procedure states that the lifting of an attachment may be ordered if it appears summarily that the claim is invalid.

According to existing case law of the Dutch Supreme Court (see for instance Supreme Court dd June 14, 1996, NJ (Dutch Law Reports) 1997, 481), this means that the plaintiff (i.e. the party requesting the attachment be lifted in summary proceedings), with due regard for the limitations of summary proceedings, should establish a prima facie case (aannemelijk maken) that the alleged …
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07
Oct 2015
CATEGORY

Legal

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