Het belang van de rechtspersoon moet worden gediend De taakvervulling door een bestuurder van een (privaatrechtelijke) rechtspersoon is niet vrijblijvend. Op de bestuurder rust een inspanningsverplichting. In artikel 2:8 lid 3 van het Burgerlijk Wetboek (van Curaçao, St. Maarten en de BES-eilanden) is een belangrijke norm voor die taakvervulling vastgelegd: Bij de vervulling van zijn taak… Continue reading HET BESTUUR VAN EEN RECHTSPERSOON
Category: Corporate
LIABILITY OF COMPANY DIRECTORS
No derivative suit It is considered a general rule of Dutch Caribbean corporate law that the management board (a.k.a. board of directors) must act in the best interests of the company (an NV or BV) in the performance of its duties, even when acting on instructions from others (e.g. shareholders). This includes the interests of… Continue reading LIABILITY OF COMPANY DIRECTORS
SHAREHOLDER APPROVAL REQUIRED FOR SELLING ALL ASSETS
In particular circumstances this rule may be set aside Generally speaking, the management board of a company (NV or BV) is not entitled to sell the company’s business or a substantial part thereof, without the approval of the shareholders’ meeting. The Enterprise Chamber of the Court of Appeal in Amsterdam confirmed this in its decision… Continue reading SHAREHOLDER APPROVAL REQUIRED FOR SELLING ALL ASSETS
KNOWLEDGE CEO CAN BE IMPUTED TO CORPORATION
Interesting opinion of the United States Court of Appeals for the Ninth Circuit Knowledge can be both actual and constructive. The question is under what circumstances actual knowledge, for instance the CEO’s knowledge, can be imputed to the corporation. This question was addressed by the Ninth Circuit in its opinion of 23 October 2015 (securities… Continue reading KNOWLEDGE CEO CAN BE IMPUTED TO CORPORATION
CORPORATE GOVERNANCE AND STATE-OWNED ENTERPRISES
Speech Karel Frielink – Conference of the Caribbean Ombudsman Association Ladies and Gentlemen! I have only half an hour, so I won’t travel back in time to the early days of mankind. I just start with Plato (427 – 347 B.C.E.). You may have heard of this philosopher. And of ‘Platonic love ’ of course.… Continue reading CORPORATE GOVERNANCE AND STATE-OWNED ENTERPRISES
NO DERIVATIVE ACTION IN CURACAO
A claim based on tort is possible though Curaçao corporate law does not provide for any derivative suit mechanism (and neither do the laws of Aruba, St. Maarten and the BES-islands). This matter was first decided in the cases of Poot v. ABP, Hoge Raad (Dutch Supreme Court) 2 December 1994, NJ 1995, 288, and… Continue reading NO DERIVATIVE ACTION IN CURACAO
DUTIES OF A MANAGING DIRECTOR OF A DUTCH CARIBBEAN NV OR BV
Acting in the best interests of the company Although not explicitly provided for in Book 2 of the Civil Codes of Curacao, St. Maarten and the BES-islands (Bonaire, St. Eustatius and Saba) (“CC”), it is considered a general rule of corporate law that the management board (a.k.a. board of directors) must act in the best… Continue reading DUTIES OF A MANAGING DIRECTOR OF A DUTCH CARIBBEAN NV OR BV
STATE-OWNED ENTERPRISES AND GOOD CORPORATE GOVERNANCE
Speech by Karel Frielink at the 8th Biennial Conference of the Caribbean Ombudsman Association Ladies and Gentlemen! First of all, I would like to thank the Curaçao Ombudsman, Alba Martijn, for inviting me to speak at this conference. Unfortunately, she will leave office in about a month. She did an excellent job, and her professionalism,… Continue reading STATE-OWNED ENTERPRISES AND GOOD CORPORATE GOVERNANCE
LIABILITY OF THE SILENT PARTNER
The Supreme Court can give its opinion I will first describe Dutch law in this respect. A limited partnership (commanditaire vennootschap: ‘CV’) is a contractual, legal relationship between two or more persons or legal entities to carry on a business under a joint name, whereby the aim is to gain proprietary benefits on the basis… Continue reading LIABILITY OF THE SILENT PARTNER
SUPREME COURT U-TURN
The bankruptcy of a general partnership (‘VOF’) does not automatically mean the bankruptcy of its partners For many decades the rule had to be adhered to that the bankruptcy of a general partnership (vennootschap onder firma: ‘VOF’) also meant the bankruptcy of the individual partners (Supreme Court 14 April 1927, NJ 1927, page 725). However,… Continue reading SUPREME COURT U-TURN
QUASI DIRECTOR OR JUST THE BOSS?
This depends on the facts If a legal entity (an NV or BV comes to mind) becomes bankrupt, any director (according to its Articles) becomes jointly and severally liable for the deficit of the bankrupt’s estate if it is apparent that there has been improper management and it is plausible that this was a major… Continue reading QUASI DIRECTOR OR JUST THE BOSS?
LIABILITY OF A NEW PARTNER
Supreme Court creates clarity The National Ordinance on Partnerships (Landsverordening personenvennootschappen) of Curacao (1 January 2012) and St. Maarten (1 April 2014) mentions two main variants of the partnership: the public partnership and the silent partnership. The public partnership is a partnership (i) for carrying on a profession or business or performing professional or business… Continue reading LIABILITY OF A NEW PARTNER