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 …
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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 …
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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 …
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04
Apr 2012
CATEGORY

Legal

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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 …
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  • 04
    Apr 2012
    CATEGORY

    Legal

    COMMENTS No Comments

    CURACAO LAW FIRMS QUALITY RANKINGS 2012

    Spigthoff ranked Band 1

    International publisher Chambers & Partners published its global ranking of law firms Chambers Global last week. According to Chambers & Partners Dutch Caribbean law firms VanEps Kunneman VanDoorne and Spigthoff Attorneys and Tax Advisers are the leading go-to firms in the Dutch Caribbean. These two firms have the desired Band 1 firms status. Spigthoff has been promoted to that status from being Band 2 last year.

    On Spigthoff Attorneys and Tax Advisers Curacao the publisher writes that the firm is highly valued for its full-service capabilities, which includes the expertise …
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    18
    Mar 2012
    CATEGORY

    Legal

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    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 …
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    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 …
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    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 …
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    27
    Jan 2012
    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, …
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    21
    Dec 2011
    CATEGORY

    Legal

    COMMENTS No Comments

    INSURANCE BUSINESS IN ARUBA (II)

    Different insurance contracts

    According to the SOSIB a “life insurance agreement” is an insurance contract concerning the payment of cash benefits related to the life or death of man, and a “general insurance contract” is an insurance contract, other than a life insurance contract.

    Generally, an insurance contract is understood to be an agreement whereby an insurer commits itself to the insured, against receipt of a premium, to compensate the latter for a loss, damage or loss of expected advantage which the insured could suffer as a result of an uncertain event.

    There is no existing case-law or regulatory directive …
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    14
    Dec 2011
    CATEGORY

    Legal

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    INSURANCE BUSINESS IN ARUBA (I)

    The Central Bank of Aruba is the regulator

    The Central Bank of Aruba supervises insurers incorporated in Aruba and the branches and agencies in Aruba of insurers incorporated outside Aruba based on the State Ordinance on the Supervision of the Insurance Business (SOSIB).

    The SOSIB, effective since 2001, stipulates that life and non-life insurance business must be carried out by separate legal entities. The Central Bank of Aruba shall decide whether an action or a combination of actions does or does not constitute as being engaged in the life insurance business or the general insurance business, and whether an action …
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    05
    Dec 2011
    CATEGORY

    Legal

    COMMENTS No Comments

    CREDIT INSTITUTIONS IN ARUBA

    A license is required

    According to Section 4 of the Aruba State Ordinance on the Supervision of the Credit System 1998 (SOSC), no enterprise or institution established in Aruba shall pursue the business of a credit institution unless it has obtained authorization to that end from the Central Bank. No enterprise or institution established outside Aruba shall pursue the business of a credit institution through a branch in Aruba, unless it has obtained authorization from the Central Bank to do so (Section 24(1) SOSC).

    A “credit institution” under the SOSC means an enterprise or institution, not being an institution established …
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    29
    Nov 2011
    CATEGORY

    Finance

    COMMENTS No Comments