LITIGATION IS A SKILLED PROFESSION (part 3)
Foreign law
It often happens that for instance the court in Curacao has jurisdiction to hear a case but the claim is governed by the law of another country. In that case the court must be informed of the contents of that foreign law by the parties. Obviously, before you institute these proceedings you must have examined whether your claim has any chance of success. And you have to consider the question of what you will do if the claim is awarded by the court in Curacao but you have to go abroad for enforcement of that judgment. Sometimes you …
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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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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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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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CONFLICTING INTERESTS IN CURACAO INSOLVENCY LAW (part 8)
Final remarks
The receiver can be faced with a multitude of conflicting interests. Often he will be able to reach a weighing of interests relatively quickly and without many problems, but sometimes he has to balance on a thin bankruptcy tightrope. In doing so the law offers him hardly any support and neither does case law due to it being strongly case-based, although there is the reassuring fact that from a liability point of view many of his decisions should ‘only’ be able to bear a limited review.
However, the receiver personally being faced with a conflict of interest, which …
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CONFLICTING INTERESTS IN CURACAO INSOLVENCY LAW (part 7)
Conflicting interests in connection with consolidated business operations
When multiple companies of the same group go bankrupt, it can be of major importance for a creditor of one of these companies to know how the winding up is developing of one or more of the other companies. Particularly when a consolidated bankruptcy is involved, the creditors will have to be alert. In connection with a consolidated bankruptcy, there will in actual fact be one single joined estate. If this is the case, in the various bankruptcies one single joint creditors’ meeting must be held of which all the creditors of …
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CONFLICTING INTERESTS IN CURACAO INSOLVENCY LAW (part 6)
Conflicting interests of different bankruptcy estates
The management of different but associated bankruptcy estates can be entrusted to one and the same person who therefore is appointed several times as receiver. In this connection group relationships come to mind. It is true that in connection with different estates with one and the same person as receiver, companies not affiliated in a group also come to mind, but this will probably not often occur. Regularly, (members of) groups go bankrupt (for instance RSV, OGEM, DAF, Fokker, Infotheek Groep, Bredero, Text Lite, Mediasafe, Medicopharma, Palthe, Verto, Wyers, HCS, UPC, Van der Moolen, …
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CONFLICTING INTERESTS IN CURACAO INSOLVENCY LAW (part 5)
Different types of interests
A receiver cannot escape the weighing of interests. Such a weighing should be verifiable. The line of thought followed by the receiver should be clear. Particularly because, apart from his liability and remuneration, these being of a different order, he has no self-interest in the winding-up of the bankrupt estate, the receiver is the obvious person to weigh the interests. If required he can and will himself be assisted by an expert. In connection with bigger bankruptcies or when a business is continued, it is for instance sensible also to appoint as receivers one or more …
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CONFLICTING INTERESTS IN CURACAO INSOLVENCY LAW (part 4)
The receiver and personal interests
The duties of the receiver are to represent the interests of others. When his personal interests are affected he must observe extreme restraint and openness. If there is a conflict of interest or if a semblance of it has been created, he ought to withdraw as the receiver. The receiver is not allowed to sell goods forming part of the estate to himself, even if this would have been allowed by the supervisory judge (direct conflicting interest). Even bidding in a public auction he has organized is in my opinion not compatible with the independence …
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CONFLICTING INTERESTS IN CURACAO INSOLVENCY LAW (part 3)
Conflicting interests of the receiver/advocate and his law firm
A receiver must be able to take decisions freely and be able to weigh the interests involved in a bankruptcy against each other in an objective and unbiased manner. Before accepting an appointment as receiver, the respective person must make certain that he is free to act as such. If he had been the advocate (lawyer, attorney) of the bankrupt or of his shareholder or managing director before the bankruptcy order, despite his qualities he is presumed to be unable to act as such, at any rate any semblance of bias …
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CONFLICTING INTERESTS IN CURACAO INSOLVENCY LAW (part 2)
The liability of the receiver
The special characteristics of the duty of a receiver bring with them that his liability, if any, must be assessed against a standard of due care which has been tuned to this. This standard boils down to the fact that a receiver ought to act as can reasonably be required of a receiver having sufficient insight and experience and performing his duties conscientiously and with dedication. Knowledge and experience exceeding the minimum requirements can to a certain extent color the standard in a concrete case: after all there is nothing against taking as a starting …
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