BANKING SUPERVISION IN CURACAO AND SINT MAARTEN
Prudential rules and requirements
The Central Bank of Curacao and St. Maarten is responsible for the care of the financial system’s health, effected through on and off site inspections of the banking and other financial institutions authorized to operate in Curacao and St. Maarten.
The National ordinance on the supervision of banks and credit institutions provides for requirements with regard to the prudential supervision in general. Such prudential supervision sees to the liquidity and solvency position of a bank.
The legislation provides for reporting requirements that need to be submitted to the Central Bank of Curacao and St. Maarten. On …
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SURPRISE RULING BY SINT MAARTEN COURT
Court introduces non-statutory transfer of employees
In the Netherlands (the European part of the Kingdom), when an undertaking (onderneming) is transferred from one person or entity to another, by operation of law the employees have an employment relationship with the new owner on the terms and conditions agreed with the old employer. For example, such a transfer of the employment relationship may occur in the case of a take-over or merger. Following the transfer, the new owner must respect all existing employment terms and conditions, including the terms of any applicable collective labor agreement. In principle, the rules with respect …
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ASSIGNMENT OF RECEIVABLES IN CURACAO
Notification no longer necessary for perfection of assignment
Under Curacao law the transfer of ownership requires transfer of title (levering) pursuant to a valid legal title (geldige titel) by a person who has the power of disposal over the asset (beschikkingsbevoegheid) being transferred. The rules on transfer of title (levering) are equally applicable to the creation of a right of pledge over receivables. Until recently, the Curacao Civil Code, allowed for the following two methods of transfer of title (levering) of receivables:
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APPELLATE PROCEEDINGS IN THE DUTCH CARIBBEAN
Full review of the case
Appellate proceedings in the Dutch Caribbean provide for a full review of the appealed decision: the grounds on which the Appellate Court can reverse the original judgment are not, as in certain other jurisdictions, limited to procedural matters. It is furthermore permissible to introduce new documentary evidence in the course of appellate proceedings. If the appealed judgment contains a final decision as regards the dispute the Appellate Court will either confirm the judgment or it will itself render a replacing decision: the case will not be referred back to the Court of First Instance.
Furthermore, …
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INSURANCE BUSINESS IN ARUBA (II)
Different insurance contracts
According to the SOSIB a “life insurance agreement” is an insurance contract concerning the payment of cash benefits related to the life or death of man, and a “general insurance contract” is an insurance contract, other than a life insurance contract.
Generally, an insurance contract is understood to be an agreement whereby an insurer commits itself to the insured, against receipt of a premium, to compensate the latter for a loss, damage or loss of expected advantage which the insured could suffer as a result of an uncertain event.
There is no existing case-law or regulatory directive …
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INSURANCE BUSINESS IN ARUBA (I)
The Central Bank of Aruba is the regulator
The Central Bank of Aruba supervises insurers incorporated in Aruba and the branches and agencies in Aruba of insurers incorporated outside Aruba based on the State Ordinance on the Supervision of the Insurance Business (SOSIB).
The SOSIB, effective since 2001, stipulates that life and non-life insurance business must be carried out by separate legal entities. The Central Bank of Aruba shall decide whether an action or a combination of actions does or does not constitute as being engaged in the life insurance business or the general insurance business, and whether an action …
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UNITED NATIONS BASIC PRINCIPLES ON THE ROLE OF LAWYERS
The Basic Principles are considered to be a “soft-law” instrument
The Basic Priciples on the role of lawyers were adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990.
According to the preambule professional associations of lawyers have a vital role to play in upholding professional standards and ethics, protecting their members from persecution and improper restrictions and infringements, providing legal services to all in need of them, and cooperating with governmental and other institutions in furthering the ends of justice and public interest, The …
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NOMINATION TOP LAW BLOGS
Karel’s Legal Blog Nominated
Each year, LexisNexis honors a select group of blogs that set the online standard for a given industry. Karel’s Legal Blog is one of the nominated candidates for the Top 25 International & Foreign Law Blogs of 2011, featured on the LexisNexis International & Foreign Law Community.
Karel Frielink
(1 November 2011)
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THE ENFORCEMENT OF A JUDGEMENT BY THE COURTS IN CURACAO
Judgments are immediately enforceable most of the time
According to Article 55, par. 1 of the Curacao Code of Civil Procedure, opposition (in the case of a default judgment) or appeal (in the event of adversarial proceedings) prevent the enforcement (execution) of a judgment unless the decision is ‘enforceable notwithstanding opposition or appeal’ a.k.a. a judgment which is declared ‘immediately enforceable’ (‘uitvoerbaar bij voorraad is verklaard’).
The submission of an appeal results, therefore, in a stay of execution, unless the first-instance court, on a motion by one of the parties, has declared its judgment enforceable even if it is challenged …
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THE DUTCH CARIBBEAN JUDICIAL SYSTEM
A well developed system
The judicial system of the various islands in the Dutch Caribbean (Aruba, Bonaire, Curacao, St. Maarten, Saba and St. Eustatius) is independent, has a long history, and is well developed. It is capable of resolving complex commercial disputes in a just and efficient manner. The judges in the Dutch Caribbean are well-trained, professional judges.
In general, parties in civil proceedings have the right to appeal to the Joint Court of Appeal of Aruba, Curacao and St. Maarten and of Bonaire, Sint Eustatius en Saba (‘Gemeenschappelijk Hof van Justitie van Aruba, Curacao en St. Maarten en van …
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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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