THE BINDING EFFECT OF JUDGMENTS

Limited to the parties involved in the proceedings

Court decisions, even decisions by the Dutch Supreme Court, are not binding on courts when deciding future cases. However, the Code of Civil Procedure prevents parties from litigating twice on the same legal issue. The principle that a final judgment of a competent court is conclusive upon the parties in any subsequent litigation involving the same cause of action is known as ‘res judicata ’.

A Dutch court case is described below illustrating this principle: Utrecht District Court of 19 March 2009 (NJF 2009/291).

In initial litigation, the claimant had sought payment …
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02
Mar 2016
CATEGORY

Legal

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DISCHARGING THE MANAGEMENT BOARD

Only for matters evident from the accounts

The shareholders of a Dutch Caribbean limited liability company (NV or BV) may provide a discharge (décharge) to members of the management board for matters evident from the annual accounts, or matters otherwise made known to the general shareholders meeting. This is a standard item on the agenda for shareholders meetings at which a company’s annual accounts are adopted.

The aim of this discharge is that the company generally has no longer a legal cause of action against a management board member.

The effect of a discharge is limited. A discharge does not …
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18
Jan 2016
CATEGORY

Corporate

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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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26
May 2015
CATEGORY

Corporate

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DUTCH CARIBBEAN BANKS AND REGULATORY ISSUES

A bank has less freedom than an ordinary legal entity

What would be the requirements, from a regulatory point of view, if a Curaçao or St. Maarten bank wished to sell its entire business or a substantial part thereof? Would it require approval from the Central Bank of Curaçao and St. Maarten (‘Centrale Bank van Curaçao en St. Maarten’)?

Generally, if the activity at a bank is characterized as some form of financial reorganization, for example, the prior approval of the Central Bank is required. The bank is also obliged to immediately inform the Central Bank in writing of any …
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27
Jan 2014
CATEGORY

Finance

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FINAL POSTING OF 2013

Don’t look back for very long

This will be my final posting for 2013. What a year. It feels as if the whole world has changed more rapidly than ever before and not only as a result of the economic turmoil. The year 2014 is about to begin and it won’t be an easy year. Many will suffer from the crisis. There still will be tensions between countries and populations. There still will be war. However new faces and new voices in the political arena may change things for the better. Let’s hope so.

Our focus remains on client satisfaction …
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30
Dec 2013
CATEGORY

Various

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THE COURT OF LAST RESORT

Curaçao court as court of last resort for civil matters

An attachment on assets located in Curaçao generally establishes jurisdiction over the cause of action for which the attachment is made, also if neither of the parties involved are domiciled in Curaçao.

According to Section 767 of the Curaçao Code of Civil Procedure, the Curaçao court is competent to hear a case on the merits (i.e. has (international) jurisdiction) if there are no other means of obtaining an enforceable order in Curaçao (first condition).

This condition will not be met if, for instance, in respect of a claim an arbitrator …
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09
Dec 2013
CATEGORY

Legal

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150 JURIDISCHE PUBLICATIES

Een persoonlijke mijlpaal

Afgelopen donderdag was het dan zo ver: mijn 150e juridische publicatie zag het levenslicht. Het gaat om mijn bijdrage aan het Liber Amicorum ‘Christels Koers’ dat toen werd aangeboden aan prof.mr. drs. C.M. Grundmann-van de Krol: “Openbaarmaking door de financiële toezichthouders”. De volledige lijst met publicaties is hier te vinden.

Nummer 151 is overigens al geschreven en is in het komende nummer van het Caribisch Juristenblad te vinden. De meer dan 850 stukken die op deze weblog staan heb ik uiteraard niet meegeteld…

Karel Frielink Attorney (Lawyer) / Partner

(2 December 2013)

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02
Dec 2013
CATEGORY

Legal

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THE ARTICLES OF ASSOCIATION OF A CURAÇAO COMPANY (III)

Controlling minority?

Such a situation (i.e. example 2) is possibly less desirable from the company’s perspective, certainly where the more essential decision-making is concerned. Although decisions should be taken on the basis of a discussion of content and it will not always be possible to predict how the meeting of shareholders will vote, the possibility of ‘accidental’ majorities (whereby a minority shareholder nevertheless has the majority through the absence of others at the meeting of shareholders) leads to less predictability, or at least to greater uncertainty.

If a company has, for example, one 30% shareholder and the remaining 70 shareholders …
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15
Oct 2013
CATEGORY

Corporate

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THE ARTICLES OF ASSOCIATION OF A CURAÇAO COMPANY (I)

Comparable with a constitution

The articles of association of a Curaçao company (a public [NV] or private [BV] limited liability company) are somewhat comparable with a constitution or state regulations: the articles of association comprise – like the law, but also additionally to the law and, where permitted, unlike the law – the rules of play (rights, obligations and powers) to which all the organs of the company (managing board, supervisory board, shareholders’ meeting) and the members of those organs must adhere or on which they can rely.

The law of Curaçao does not prescribe that a special (or qualified) …
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09
Oct 2013
CATEGORY

Corporate

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VALIDLY REPRESENTING A CURACAO COMPANY

Extract and Articles are of importance

Limited liability companies like the Curaçao NV or BV are legal entities. Whether or not a managing director has the authority to validly represent a company can be derived from the extract from the Trade Register of the Chamber of Commerce of Curaçao together with the articles of association of the company.

However, it could be the case that the company has further regulations from which representation limitations follow. This should be assessed on a case by case basis.

A counterparty may rely on a written statement from the board of managing directors or …
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26
Sep 2013
CATEGORY

Corporate

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THE COSTS OF LITIGATION

Parties have to bear their own attorney costs

Under the laws of Aruba, Bonaire, Curaçao, St. Maarten, St. Eustatius and Saba, generally speaking, each party has to bear its own attorney costs, except if there is an agreement in place between the parties providing for such compensation. Other costs related to proceedings are for instance bailiff costs and court fees.

The extent to which the aforementioned costs of litigation are to be borne by the party losing the case are determined by the court. The costs will in fact not compensate the actual costs and attorneys fees incurred. They are …
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12
Aug 2013
CATEGORY

Legal

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A CURACAO COMPANY WITH NEGATIVE EQUITY AND FINANCIAL SUPPORT

Restrictions for providing financial support to a party acquiring shares in its capital?

A company cannot purchase its own shares if it has a negative equity capital or when this equity capital becomes negative by purchasing them, whereby the nominal capital applies as the lower limit (Section 2:114 subsection 2 of the Curaçao Civil Code in conjunction with Section 2:118 subsections 5 to 7 of the Curaçao Civil Code).

The question is, however, whether a Curaçao NV (public limited company) or BV (private limited liability company) with negative equity is allowed to provide financial support to a third party acquiring …
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26
Jul 2013
CATEGORY

Corporate

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