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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TERMINATION OF EMPLOYMENT AGREEMENT AND REDUNDANCY
Termination by mutual consent is preferable
In general, Curacao labor law provides for the following ways to terminate an employment agreement: (i) termination by giving notice, (ii) dissolution by the Courts and (iii) termination by mutual consent.
Prior to giving notice, an employer must obtain a permit from the Director of the Directorate of Labor Affairs. The Director will determine whether there is a valid reason for the dismissal. In the case of redundancy the employer is obliged to provide a detailed financial justification thereof. If in agreement, the Director of the Directorate of Labor Affairs may issue a permit …
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THE RHYTHM AND BLUES OF CURACAO CONTRACT LAW
Principle of fairness and reasonableness
When considered in the perspective of the laws of Curacao, the reliance on or the enforcement of contractual terms and conditions contained in any agreement, may under certain circumstances be contrary to the overriding principle of ‘fairness and reasonableness’ (redelijkheid en billijkheid) which governs the relationship between the parties to an agreement. Prof. Tjittes calls this good faith principle the Rhythm & Blues of our legal system.
Civil law systems such as the Dutch, French, German, or our system, explicitly espouse and apply this principle, whereas common law systems (e.g. English common law) do not …
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THE UTOPIAN LAWYER
Dare to dream!
A high degree of civilisation must be expected from the ideal advocate (attorney; lawyer) as well as a high degree of learning and expertise. A practical attitude, language skill and rhetorical ability form part of the standard baggage of the utopian advocate. He is not only feared for his razor-sharp analyses, for breaking through reasoning utterly lacking any logic and for turning the attackers of the rule of law to stone, but both friend as well as foe respect his disposition as well as his expertise.
Quite often the utopian advocate will get the feeling that in …
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THE LAWYER AS A VIRTUOSO OF LANGUAGE (PART II)
The use of technical concepts has a useful function
Another example is the Directive of the European Commission of 18 February 1985 (85/205/EEC) adapting to technical progress Council Directive 71/127/EEC on the approximation of the laws of the Member States relating to the rear-view mirrors of motor vehicles. The term “rear-view mirror” in itself means a device excluding complex optical systems such as periscopes, intended to give a clear view to the rear and side of the vehicle within the fields of vision defined in item 5 of Annex III.
There was at some time a Directive proposal to define …
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THE LAWYER AS A VIRTUOSO OF LANGUAGE (PART I)
The use of technical concepts has a useful function
Language is the instrument par excellence of the advocate (attorney; lawyer). He uses language to lay down agreements, to provide legal advices, to formulate Court documents, to send demand letters, to make his plea or to conduct talks with clients or counterparties, to send invoices, in short: to practice his profession. For many people what advocates write down is difficult to fathom. One of the reasons for this is because legislation and regulations are formulated rather formally and in an indirect form while using a lot of abstract concepts. Here are only …
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THE LAWYER AS ORATOR
A sensitive subject
The advocate (attorney; lawyer) as orator is a sensitive subject. Many clients will have listened with curled toes or alternatively with a deep feeling of embarrassment to their own advocate or (if they are lucky) to that of their counterparty at the moment suprême when the so-carefully prepared written summary of the argument is read out dryly and stumbling over the words or at least in a scarcely inspiring manner. And the one who has bad luck will be faced with a ‘read-out advocate‘ who sometimes does even thirty or more pages. And all this whereas the first Roman …
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ON THE IMAGE OF LAWYERS
Bloodsuckers and hypocrites?
Lawyers (attorneys) are often exposed to strong criticism, both here and elsewhere. The late famous Dutch professor A. Pitlo (Evolutie in het privaatrecht, [Evolution in private law] Groningen: H.D. Tjeenk Willink 1972, p. 102) speaks with regard to certain advocates (lawyers) about the ‘half-intellect’ that by intellectualism must succeed in being kept up towards the masses.
Publications that are extremely critical of advocates can date from any time and the first ones already from before ancient Rome. In this connection François Rabelais (1494-1553) should also be mentioned and (more or less in his footsteps) Honoré Daumier (1808-1879). …
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THE LAWYER AS CRAFTSMAN
Tradition and resourcefulness
You could hear these statements just about anywhere: “The study of law is a dull study. You have to read a lot of books and especially learn a lot by heart. But luckily it is not a difficult study. It is more or less the easiest study to graduate in.” Is all this true? It depends and it depends particularly on yourself. For ‘marginalists’ and notorious ‘superficial thinkers’ all this is more or less at a premium. But it is questionable whether these are the people who have the right qualities to practice the craftsmanlike profession of …
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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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SUPERVISORY DIRECTORS OF A CURACAO INSURANCE COMPANY
The Central Bank has issued guidance notes
According to the Curacao Ordinance on the Supervision of the Insurance Business, a Board of Supervisory Directors of an insurance company shall have the task of supervising the policy of the Management Board of such company and the general course of events of the insurance company and the business associated with it. It shall advice the Management Board. In carrying out its duties the Board of Supervisory Directors shall take into account the interests of the insurance company and the business associated with it (Article 16 par 4 Ordinance).
‘The actions and records of …
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GOOD CORPORATE GOVERNANCE REVISITED
Where these rules not designed to protect companies from the government?
It has been my opinion for many years already that government-owned companies should be kept out of the political sphere as much as possible, so that they may benefit from a commercial, businesslike and market-oriented management. In doing so they also run less of a risk of being milked or used as political toys.
When the current government of Curacao came into power a couple of months ago, it made it very clear, right from the beginning, that it intended to dismiss all and any supervisory directors of both …
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