THE INCORPORATION OF A NETHERLANDS CARIBBEAN LIMITED LIABILITY COMPANY

Incorporating an NV or BV is not a hassle

The act on corporate law (Book 2 Netherlands Antilles Civil Code) governs the NV (‘public limited liability company’) and BV (‘private limited liability company’). These companies can be used for group finance or holding activities, (international) joint-ventures, funds, structured finance and “plain-vanilla” (local) activities.

A notarial deed is required for the formation of an NV or BV and for any amendment to articles of association (a.k.a. articles of incorporation). Formation can however, be very quick (within one or two days if necessary) and doesn’t require many other formalities. The founders of …
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12
Dec 2009
CATEGORY

Corporate

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THE CUSTODY OF SECURITIES IN THE NETHERLANDS CARIBBEAN

Separate legal entity

Generally, securities that must be held by a Netherlands Antilles bank on behalf of its clients will be held by a custodian. In most cases the custodian is either a foundation (‘stichting’) or a wholly owned subsidiary (NV or BV) of the bank.

The scope of the activities of the custodian will be limited to holding shares, bonds, notes, certificates and other securities. The insolvency risk of the custodian is therefore minimized. Alternatively, these securities can also be held in the name of the custodian by independent custody companies abroad, including brokers, agents and sub-custodians. In both …
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05
Dec 2009
CATEGORY

Finance

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NETHERLANDS 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 Netherlands Antilles bank wished to sell its entire business or a substantial part thereof? Would it require approval from the Netherlands Antilles Central Bank (de ‘Bank van de Nederlandse Antillen’)?

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 resolution for complete or partial liquidation or …
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28
Nov 2009
CATEGORY

Legal

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THE ARTICLES OF ASSOCIATION OF A DUTCH CARIBBEAN LEGAL ENTITY (III)

Case law the principle of good faith

A legal entity and all involved in its organization have a legal duty to behave towards each in accordance with the principles of reasonableness and fairness, i.e. (objective) good faith. A provision or requirement contained in a legal entity’s articles of association or by-laws, may be set aside by the Courts if, in any given circumstances, it is in breach of the principles of reasonableness and fairness. Good faith may, in a certain cases, extinguish rules prevailing between the parties or exclude their application.

I will discuss two Dutch court cases below. It …
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14
Nov 2009
CATEGORY

Corporate

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THE ARTICLES OF ASSOCIATION OF A DUTCH CARIBBEAN LEGAL ENTITY (II)

Limitations on the applicability of provisions

As a general matter of Netherlands Antilles law, the interpretation of terms contained in legal documents, such as the articles of association and the by-laws, however only to a certain extent, inter alia subject to the intention of the parties, and the enforcement thereof, is subject to the overriding principle of “fairness and reasonableness” (in Dutch: “redelijkheid en billijkheid”) meaning that under certain circumstances a term of the articles of association or by-laws may not be applicable in so far as this term would in such circumstances be contrary to this principle.

According to …
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07
Nov 2009
CATEGORY

Corporate

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THE ARTICLES OF ASSOCIATION OF A DUTCH CARIBBEAN LEGAL ENTITY (I)

Ranging from basic to extremely complex

Under the laws of the Netherlands Antilles, public and private limited liability companies (NVs or BVs), foundations, co-operatives, mutual insurance societies and associations are considered legal entities.

The articles of incorporation (a.k.a. articles of association) provide the regulatory framework by which these legal entities in the Netherlands Antilles are governed and by which they must abide. Additionally regulations (‘reglementen’) are sometimes also used as a sort of ‘by-laws’.

The articles of association are more or less comparable with the constitution of a country. Regulations can for instance be adopted by a managing board, a …
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31
Oct 2009
CATEGORY

Corporate

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BES LAW DEVELOPMENTS

Bonaire, St. Eustatius and Saba (BES)

Within a couple of years, the BES Islands, as public entities, will be part of the country of the Netherlands in the framework of the political restructuring in the Kingdom of the Netherlands. The US dollar will be introduced as the new currency in the BES Islands. Curacao and St. Maarten will each become a country within the Kingdom of the Netherlands and have their own legislation and regulations.

The starting point of the political restructuring is that Dutch legislation will be introduced only gradually into the BES Islands. It has been established that …
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24
Jun 2009
CATEGORY

Legal

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LIBERALIZATION IN THE DUTCH CARIBBEAN

Telecom first, airlines to follow suit

The government of the Netherlands Antilles has been in favor of liberalizing the telecommunication market for may years now. Liberalization of the telecom market means opening it up to domestic and foreign competition, subject to certain regulatory principles.

Basically, liberalization means competition; competition means price levels determined by the market, not by a monopoly. This will benefit the consumers. In a free market telecom companies will, in principle, also be more innovative, more service-minded, offering a better and wider range of services, including service packages, for example, in an attempt to keep their customers …
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21
Mar 2009
CATEGORY

Legal

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THE STRUCTURE OF A DUTCH CARIBBEAN FUND

It is easy and inexpensive to set up a SPV (Special Purpose Vehicle)

From a legal point of view, establishing a fund in Curaçao is very attractive under the corporate law in force since March 1, 2004, whereby a private limited liability company (besloten vennootschap) can be established very quickly and flexibly. Virtually everything is possible with this new legal entity. There is no minimum issued share capital requirement. Incorporation may be done within a day does not require any prior governmental approval. It is possible to split voting rights and dividend rights. There is no statutory requirement to have …
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10
Feb 2009
CATEGORY

Finance

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DUTCH CARIBBEAN REGULATORY FRAMEWORK

Central Bank monitors compliance

The regulatory rules and regulations in the Netherlands Antilles deal with credit institutions, investment institutions and administrators, insurers and insurance brokers, company pension funds, trust service providers, capital markets, anti-money laundering and identification, and foreign exchange control and license fees.

The Netherlands Antilles have one regulator: the Central Bank of the Netherlands Antilles (Bank van de Nederlandse Antillen). The Central Bank is a separate legal entity (rechtspersoon) having its seat in Curacao. The Central Bank is also an independent administrative body (zelfstandig bestuursorgaan) and does therefore not fall under the political responsibility of the Minister of …
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23
Sep 2008
CATEGORY

Finance

COMMENTS No Comments