LITIGATION IS A SKILLED PROFESSION (part 2)

Which court is competent to hear the case?

In order to answer the question of which court you should bring your action before, the type of claim can also be important. In Curacao you must bring your claim for collection of a sum of money or a dispute involving a take-over contract before the Court of First Instance. But if you start inquiry proceedings you should go to the Joint Court of Appeal. And if as a civilian you want inquiry proceedings to be brought against a State-owned company, the petition to this end must be submitted to the Public …
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03
May 2013
CATEGORY

Legal

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LITIGATION IS A SKILLED PROFESSION (part 1)

Everything boils down to knowledge and experience

Litigation appears to be simple. For instance you have a monetary claim on someone (a private person or an enterprise) and you ask the court to determine in a judgment that you indeed have this claim. And you ask the court that the counterparty be ordered to pay the claim. And once you have this judgment, you can enforce it with the assistance of a bailiff (deurwaarder). This means for instance seizing a trade stock and selling it publicly in an auction. Simple, yes? Why then is litigation a discipline for which you …
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26
Apr 2013
CATEGORY

Legal

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CHAMBERS AND PARTNERS QUALITY RANKINGS 2013

Spigt Dutch Caribbean still a number 1 firm

International publisher Chambers and Partners published its global ranking of law firms ‘Chambers Global’ on 14 March 2013. In its survey Chambers Global 2013, Chambers and Partners ranks Spigt Dutch Caribbean as Leading Firm.

Chambers in its survey:

This corporate heavyweight continues to attract plaudits for its wide-ranging expertise, and is particularly commended for its strength in tax and litigation work. The 13-strong team advises prestigious local and international clients on securities, …
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19
Mar 2013
CATEGORY

Legal

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ORDER OF THE COMMON APPEAL COURT OF CURACAO CONCERNING THE RIGHT TO INSTITUTE AN INQUIRY

The Appeal Court has taken several fundamental decisions

On 5 March 2013 the Common Court of Justice of Aruba, Curacao, Sint Maarten and of Bonaire, Sint Eustatius and Saba (case: Ghis 55769 – HAR 28/12) issued an order in connection with inquiry proceedings. This order contains three major considerations.

The right of legal entities (including public limited companies [NV] and private companies with limited liability [BV]) to institute an inquiry was introduced in Curacao on 1 January 2012. Almost immediately after this introduction an application for instituting inquiry proceedings was submitted to the Appeal Court. The facts …
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07
Mar 2013
CATEGORY

Corporate

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BESCHIKKING INZAKE ENQUETERECHT GEMEENSCHAPPELIJK HOF CURACAO

Het Hof neemt enkele principiële beslissingen

Op 5 maart 2013 heeft het Gemeenschappelijk Hof van Justitie van Aruba, Curaçao, Sint Maarten en van Bonaire, Sint Eustatius en Saba (zaak: Ghis 55769 – HAR 28/12) een beschikking in het kader van een enquêteprocedure gegeven. Drie belangrijke overwegingen worden hier genoemd.

Het enquêterecht voor rechtspersonen (waaronder naamloze en besloten vennootschappen) is in Curaçao op 1 januari 2012 ingevoerd. Vrijwel direct na de invoering is een enquêteverzoek bij het Hof ingediend. De feiten die aan dat verzoek ten grondslag zijn gelegd hebben betrekking op de jaren voorafgaande aan de invoering van het enquêterecht. …
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05
Mar 2013
CATEGORY

Corporate

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LECTURE ON GOOD CORPORATE GOVERNANCE

Looking back on the future: the further development of corporate governance in Curaçao

A seminar on Checks and Balances in Corporate Governance on Curacao, was held on Thursday February 21st, 2013. More than 125 interested managing directors, supervisory directors, lawyers, accountants and other participants were in attendance.

The seminar was organized by the Board of financial supervision (College financieel toezicht – Cft), the Foundation Bureau for Supervision and Standardization Government Entities (Stichting Bureau Toezicht en Normering Overheidsentiteiten – SBTNO) and the Dutch Caribbean Accountants Association (DCAA). I had the honor to speak on the present and future of the Corporate …
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28
Feb 2013
CATEGORY

Corporate

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INADEQUATE CAPITALIZATION OF A CURACAO COMPANY

Liability for thin-capitalization?

A shareholder is not personally liable for acts performed in the name of the company and is not liable to contribute to losses of the company in excess of the amount which he must pay to the company as contribution for his shares.

In terms of ‘piercing the corporate veil’, thin or inadequate capitalization usually means capitalization that is not in proportion to the nature of the risks the business of the corporation necessarily entails; in other words it is based on likely economic needs rather than legal requirements. In almost all jurisdictions, undercapitalization as such is …
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16
Aug 2012
CATEGORY

Corporate

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GOVERNMENT AND CORPORATE GOVERNANCE (V)

Government drafted model articles of association

The first model articles of association date from March 15, 2011.

For criticism see: K. Frielink, Visie Land op overheids-NV’s verkeerd [Vision Country on government-owned NVs incorrect], Antilliaans Dagblad 15 April 2011, p. 16 and M.L. Alexander, F.B.M. Kunneman, L.G. Santine and R.J. in ’t Veld, Modelstatuten ten sterkste afgeraden [Model articles of association strongly discouraged], Antilliaans Dagblad 20 September 2011, p. 14-15. See also K. Frielink, Stop politieke benoemings- en ontslagcarrousel [Stop politicial appointment and dismissal merry-go-round], Antilliaans Dagblad 14 September 2010, p. 14-15.

In the meantime, the models for …
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21
Jun 2012
CATEGORY

Corporate

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GOVERNMENT AND CORPORATE GOVERNANCE (IV)

Code Corporate Governance Curacao

On January 1, 2010, the National Ordinance regarding corporate governance came into effect. Based on this the Code Corporate Governance Curacao came into being, that also came into effect on January 1, 2010. In it, reference is still made to the Executive Council and the island territory of Curacao, but as from October 10, 2010 these are understood to mean the government of Curacao and the Country Curacao.

The National Ordinance does not only undertake to establish a corporate governance code, but also to implement the Code in the government-owned companies. In 2011, this implementation obligation …
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14
Jun 2012
CATEGORY

Corporate

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GOVERNMENT AND CORPORATE GOVERNANCE (III)

The government is not automatically an ‘ordinary’ shareholder

It is obvious that in a small community such as that of Curacao, with only a limited choice when it comes to directors and supervisory directors to be appointed, and in which (family, social) networks seem to play an important role in making choices, there is a field of tension. It is even more important therefore that government has a clear vision regarding its shareholdership and that there are good and transparent procedures, e.g. regarding the appointment of directors and supervisory directors.

Does the obligation exist for the government to, briefly stated, …
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07
Jun 2012
CATEGORY

Corporate

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GOVERNMENT AND CORPORATE GOVERNANCE (II)

Government (not) at a distance?

Being a director of a government-owned company is certainly not always as easy. Neither is being a shareholder in a government-owned company. The directors will usually complain about too much influence from politicians, while the politicians will usually find that they have too little grip on government-owned companies. In this connection, there are two important topics we will have to consider briefly.

I will ignore cultural aspects here. In that respect see e.g. chapter 8 of the dissertation of A. van Marrewijk, Internationalisation, cooperation and ethnicity in the telecom sector, Delft: Uitgeverij Eburon 1999, 340 …
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31
May 2012
CATEGORY

Corporate

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