FINAL POSTING OF 2011

What a year!

This will be my final posting for 2011. 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 Arabic Spring and the economic turmoil.

The year 2012 is about to begin and it won’t be an easy year. Many will suffer from the crisis and many will keep suffering from oppression, diseases and natural disasters. 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 …
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29
Dec 2011
CATEGORY

Various

COMMENTS No Comments

WHY WOULD SOMEONE BECOME A LAWYER?

The story of Saint Yvo (1253-1303)

Without being sworn in to the Bar it is not possible to call yourself an advocate (lawyer; advocaat) in the Dutch Caribbean. Being sworn in as an lawyer is for any beginner a high point, a clear start. The lawyer undertakes responsibility and does this under oath.

Art. 3 par. 2 of the Dutch Caribbean ‘Advocatenlandsverordening 1959‘ [Lawyers National Ordinance 1959] prescribes the following oath or affirmation:

“I swear (affirm) loyalty to the King, compliance with the Charter and the National Regulations, respect for the judicial authorities and that I shall not recommend or defend …
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04
Mar 2011
COMMENTS No Comments

ELECTRONIC AGREEMENTS IN CARACAO AND SINT MAARTEN

The Dutch Caribbean digital signature exists for over 10 years

The Curacao Ordinance on Electronic Agreements a.k.a. the Curacao Ordinance on agreements concluded electronically (Landsverordening overeenkomsten langs elektronische weg) became effective on 1 January 2001. The Ordinance in St. Maarten is similar to the one in Curacao.

The Ordinance provides that an electronic signature shall have the same legal effect as a hand-written signature, and may be admitted as evidence in legal proceedings. An electronic signature is described as electronic data which are attached to or have a logical association with other electronic data and are used as a tool …
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11
Feb 2011
CATEGORY

Legal

COMMENTS No Comments

PROPOSED REVIEW DUTCH CARIBBEAN CORPORATE CODE

Various proposals not yes discussed here

The prohibition of appointing Supervisory Directors besides a ‘one-tier Board’ will be deleted (Article 2:19 paragraph 1 proposed bill). Supervisory Directors being a legal entity are allowed to a limited extent (Article 2:19 paragraph 3 proposed bill).

For the NV and the BV the law determines who has the right to attend meetings (Article 2:129/229 proposed bill). Unfortunately, in this connection no attention is given to the holders of depositary receipts for shares. In the case of concurred depositary receipts (i.e. certificates released with the co-operation of the corporation) I would prefer to grant the holders …
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14
Dec 2010
CATEGORY

Corporate

COMMENTS No Comments

PROPOSED REVIEW DUTCH CARIBBEAN LEGISLATION ON CONFLICTING INTEREST

The proposed bill gives shareholders more freedom

Earlier in 2010, a draft bill was proposed to amend the Corporate Code (Book 2 Civil Code) of Curacao, St. Maarten, Bonaire, St. Eustatius and Saba (which formerly constituted the Netherlands Antilles). Among other things, the provisions with regard to conflicting interest have been thoroughly reviewed and strongly curtailed.

The basic rule provides that the authority with regard to legal acts in connection with lawsuits against a Managing Director rests with the Supervisory Board. If the company has no Supervisory Board, this authority rests with the general meeting or a person or body …
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06
Dec 2010
CATEGORY

Corporate

COMMENTS No Comments

PROPOSED REVIEW DUTCH CARIBBEAN LEGISLATION ON DIRECTORS’ LIABILITY IN BANKRUPTCY

Defects detected in the annual accounts drawn up may be relevant

Earlier in 2010, a draft bill was proposed to amend the Corporate Code (Book 2 Civil Code) of Curacao, St. Maarten, Bonaire, St. Eustatius and Saba (which formerly constituted the Netherlands Antilles). Hopefully, the Bill comes into force in 2011. Among other things, the provisions with regard to Managing Director’s liability have been improved.

In the event of the bankruptcy of the legal entity each Managing Director is jointly and severally liable to the estate for the deficit being the amount of the debts insofar as they cannot be …
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24
Nov 2010
CATEGORY

Corporate

COMMENTS No Comments

PROPOSED REVIEW DUTCH CARIBBEAN LEGISLATION ON REPRESENTATION

Restrictions in managing authority work through into the representative authority

Earlier in 2010, a draft bill was proposed to amend the Corporate Code (Book 2 Civil Code) of Curacao, St. Maarten, Bonaire, St. Eustatius and Saba (which formerly constituted the Netherlands Antilles). Hopefully, the Bill comes into force in 2011. Some of the proposed changes will be discussed here.

Restrictions of the managing authority can arise from a by-law or a corporate agreement. Individual Managing Directors exercise their powers with due observance of the resolutions of the Management Board (Article 2:8 paragraph 2 Civil Code). Subject to restrictions arising from …
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10
Nov 2010
CATEGORY

Corporate

COMMENTS No Comments

NON-POSSESSORY PLEDGE UNDER THE LAWS OF ARUBA

A non-possessory pledge requires a deed

Security rights are an important issue, especially in financing transactions. A company may, for example, guarantee the obligations of another company under a certain loan facility. There are several alternatives, one of which will be discussed here.

Under the laws of Aruba there are several kinds of pledges, in particular, the possessory and the non-possessory pledge. In the case of a possessory pledge, the physical control of the assets concerned will be transferred from the owner/borrower to the bank/lender.

In the case of a non-possessory pledge, regarding for example registered shares, the pledge is …
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17
Aug 2010
CATEGORY

Legal

COMMENTS No Comments

FOREIGN CLAIMS SECURED BY ARUBAN SECURITY RIGHTS

The foreign law governed claim must be sufficiently identifiable

Many financing arrangements are of a cross-border nature. For instance, a loan agreement governed by English law with the loan secured by a right of pledge governed by the laws of Aruba. This raises all kinds of questions.

Any foreign right, for instance a claim, in which an Aruban pledge is created, must be sufficiently identifiable (‘met voldoende bepaaldheid omschreven’) within in the meaning of section 3:84(2) of the Civil Code of Aruba.

Also, if one wishes to create a right of pledge in a foreign right, such a right must …
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23
Jan 2010
CATEGORY

Legal

COMMENTS No Comments