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

COMMENTS No Comments

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

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

COMMENTS No Comments

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

COMMENTS No Comments

CORPORATE GOVERNANCE AND STATE-OWNED ENTERPRISES

Speech Karel Frielink – Conference of the Caribbean Ombudsman Association

Ladies and Gentlemen!

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. And of ‘Platonic love ’ of course. Plato himself mistrusted and generally advised against physical expressions of love.

Ladies and gentleman, we are real people. Human beings of flesh and blood. We are no zombies! So I imagine that Plato would have advised people like you and me: “govern yourself, put restrictions …
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19
Oct 2015
CATEGORY

Corporate

COMMENTS No Comments

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

COMMENTS No Comments

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

COMMENTS No Comments

ATTACHMENTS UNDER THE LAWS OF CURACAO (part I)

Freezing assets is rather easy

Under Curaçao law any party with a prima facie claim may file a petition for a court order granting an attachment, which petitions are generally granted, solely based on the allegations in the petition. It is not required, under Curaçao law, that the litigant needs to demonstrate that, in absence of an attachment, there is a risk that the defendant would have insufficient assets to pay a judgment, as a threat of evading a judgment (by moving assets etc.) does exist.

Only with respect to some types of assets, such as registered shares and other …
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29
Sep 2015
CATEGORY

Legal

COMMENTS No Comments

RESTRUCTURING, REFINANCING AND CREDITOR PROTECTION

Diligence is required

Especially in these times of global economic and financial turmoil, an international group of companies (or part thereof) might want to consider restructuring and refinancing its operations or may be already in the process of doing so. When considering or carrying out such plans, careful thought must be given to potential (legal) risks involved. For instance, in many jurisdictions specific statutory provisions exist regarding fraudulent preference actions, i.e. actions that prejudice (specific) creditors. Such provisions often also apply in full with respect to (individual companies belonging to) a group of companies, and should not be overlooked in …
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22
Sep 2015
CATEGORY

Finance

COMMENTS No Comments

OPPORTUNITIES TO MEET ME

Amsterdam, The Hague & Vienna

I am going to attend the following conferences:

  • Consular Conference – The Hague, 22 September 2015
  • InterExpo / 20th Trade Mission – Amstel Hotel Amsterdam, 23 – 25 September 2015
  • International Chamber of Commerce (ICC), FraudNet Conference – Vienna, Austria, 1 – 3 October 2015
  • IBA (International Bar Association) International Conference – Vienna, Austria, 4 – 7 October 2015
  • I hope to meet many colleagues and others from all over the world.

    Karel Frielink (Attorney/Lawyer, Partner)

    (17 September 2015)

    .

    17
    Sep 2015
    CATEGORY

    Legal

    COMMENTS No Comments

    FRAUD (part II)

    Legal forms of fraud

    The person who forges a diploma, agreement or identity document is guilty of a criminal offence. Although the concept of ‘fraud’ is only mentioned in relation to human trade in the Criminal Code of Curaçao, there are various offences which can have a relationship with fraud in the sense meant herein: forgery, embezzlement, swindle, (fraudulent) bankruptcy and bribery.

    In civil-law relationships the doctrines such as breach of contract, wrongful act, misleading advertisement, error and deception come to mind. In addition, there are lots of other Acts with special provisions such as tax law. I will pass …
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    12
    Sep 2015
    CATEGORY

    Legal

    COMMENTS No Comments