A JOINDER BETWEEN PARTIES IN THE DUTCH CARIBBEAN
An interest must be proved
When two parties are involved in legal proceedings a third party may request permission to join the proceedings thereby to joining with one party in raising defense against the other (‘voeging’). Alternatively, a third party may request permission to intervene (‘tussenkomen‘) in pending proceedings, in which case neither party is joined.
The Dutch Supreme Court (May 3, 1957, NJ 1959, nr. 62) ruled that a joinder between parties in pending proceedings may only be sustained if the party requesting the joinder have an evident interest in supporting one of the parties’ positions, and thus in …
Read the rest »
PLEDGING FUTURE RECEIVABLES IN THE DUTCH CARIBBEAN
Bankruptcy pledgor will prevent valid pledge
Under the laws of the Netherlands Antilles, a right of pledge may be established on future receivables, however, the right of pledge on a future receivable will only be perfected the moment such a receivable comes into existence, provided that, at such a time, the pledgor is authorized to dispose over or encumber such receivables (‘beschikkingsbevoegd’).
Therefore, if a pledgor has been granted a suspension of payments (‘surséance van betaling verleend’) or has been declared bankrupt (‘failliet verklaard’) in the Netherlands Antilles, before a future receivable, directly resulting from an existing legal relationship, comes …
Read the rest »
THE DUTCH CARIBBEAN AND OECD STANDARDS OF TRANSPARANCY AND EXCHANGE OF INFORMATION
OECD Secretary-General compliments the Netherlands Antilles and Aruba
In his speech on 21 October 2008, OECD Secretary-General Angel Gurría, addressed the issue of transparency and exchange of tax information in relation to offshore jurisdictions. The Secretary-General:
“In 2000 we identified over 40 tax havens and between 2000 and 2005 we were able to convince 35 of these tax havens to commit to the OECD standards of transparency and exchange of information. Seven tax havens initially refused to make this political commitment and were placed on a list of uncooperative tax havens. By 2008 this list …
Read the rest »
FOREIGN CLAIMS SECURED BY DUTCH CARIBBEAN SECURITY RIGHTS
The 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 Netherlands Antilles right of pledge. This raises all kinds of questions.
Any foreign right, for instance a claim, in which a Netherlands Antilles pledge is created, must be sufficiently identifiable (‘met voldoende bepaaldheid omschreven’) within in the meaning of section 3:84(2) of the Netherlands Antilles Civil Code.
Also, if one wishes to create a right of pledge in a foreign right, such a right must be a registered claim (‘een tegen …
Read the rest »
COVENANTS NOT TO COMPETE IN THE DUTCH CARIBBEAN
Such covenants are null and void
A non-competition clause, a.k.a. a covenant not to compete, is a stipulation between the employer and the employee whereby the latter is restricted in his right to work in a given way upon termination of the latter’s contract of employment. Typically, a non-competition clause will prohibit an employee from seeking employment, or being directly or indirectly involved in the same type of industry or business conducted by another employer. According to the laws of the Netherlands Antilles, any non-competition clause related to an employment contract is null and void and thus not enforceable. This …
Read the rest »
KEEPING, MAINTAINING AND RETAINING RECORDS FOR TAX PURPOSES IN THE DUTCH CARIBBEAN
Records must be kept for 10 years
Pursuant to article 43 of the Netherlands Antilles State Ordinance on National Taxes (Algemene Landsverordening Landsbelastingen, “GONT”) an entity is obliged to keep the records (‘administratie’) of its assets and liabilities that clearly show the rights and obligations at all times and that provide the data relevant to the levying of taxes. These records and the associated data carriers must be kept for a period of 10 years. The GONT does not define what “records” are. The word records is therefore a grey area.
It is important to know that these obligations are …
Read the rest »
PROVIDING INFORMATION TO THE DUTCH CARIBBEAN TAX INSPECTOR
Digital information is not sufficient
In general every company is obliged to supply the Tax Inspector with data and information that is or can be significant for levying taxes from that company. Regarding the aforementioned all data carriers or their content have to be made available at the request (and discretion) of the Tax Inspector.
Digital versions of the data and information do not represent sufficient compliance with this obligation. If there are only digital documents available (like e-mails), then the taxpayer must ensure that the Tax Inspector is able to read such data during the legal period that the …
Read the rest »
THE DUTCH SUPERVISION ON TRUST COMPANIES (IV)
Identity of ultimate beneficiary must be known
According to the Order on Sound Operational Management (the Order)(‘Regeling integere bedrijfsvoering Wet toezicht trustkantoren’) pursuant to the ASTO, a trust office shall know the identity of the ultimate beneficial owner (‘UBO’) of an object company and keep the evidence used to determine who qualifies as the ultimate beneficial owner and from which the identity of the ultimate beneficial owner has been established, available (Article 12 (1) of the Order).
The trust office shall keep a client acceptance file for every object company, for every sale of a legal entity, and for each …
Read the rest »
THE DUTCH SUPERVISION ON TRUST COMPANIES (III)
Policy rule on integrity testing
The integrity of those having a certain interest in, or control over, a trust office (such as managers, supervisory directors and persons who determine or help determine policy) will be tested and their antecedents investigated (Article 3 of the Dutch Act on the Supervision of Trust Offices; ‘ASTO’). The test is set out in detail in the Policy Rule on Integrity Testing, which contains rules regarding the testing of the integrity of persons who (co-)determine, or are to be appointed to (co-)determine, the policy of supervised institutions, and of holders and prospective holders of qualifying …
Read the rest »
THE DUTCH SUPERVISION ON TRUST COMPANIES (II)
Regulatory framework aims at sound operational management
Section 10 (1) of the Dutch Act on the Supervision of Trust Offices (the ‘ASTO’) states that rules may be issued for trust offices, pursuant to an order in council, i.e. a governmental decree, with the intention of ensuring sound operational management. Such rules were issued in the Order on Sound Operational Management Relating to The ASTO (‘Regeling integere bedrijfsvoering Wet toezicht trustkantoren’; the ‘Order’). The Order is in effect from 1st March 2004.
According to Article 2 (c) of the Order, sound operational management means:
“the management of the organization of the …
Read the rest »
THE DUTCH SUPERVISION ON TRUST COMPANIES (I)
The Dutch Central Bank is the supervisor
The Dutch Act on the Supervision of Trust Offices (‘ASTO’) (‘Wet toezicht trustkantoren’) entered into force on the 1st of March 2004. According to the legislative history, the Explanatory Notes to the Act, the aim of the ASTO is to promote the integrity of the financial system by regulating the trust industry. The Explanatory Notes (Par.3.3) continue:
“The main subject of this bill is the integrity of the trust office and the relational integrity, the integrity of clients of the trust office, in the sense that the buyer (as the ultimate …
Read the rest »
DUTCH CARIBBEAN PRIVATE INTERNATIONAL LAW
The legal effects doctrine: an exception to the lex loci delicti rule
Under Dutch Caribbean rules of private international law, a claim arising from an unlawful act is governed, in the absence of a choice of jurisdiction by the parties, by the law of the country were the unlawful act was committed (lex loci delicti). However, this rule may possibly not apply if the tortfeasor and the injured party are both residing in a country other than that where the unlawful act was committed and if the legal effects occur entirely in the other country. This is the so-called legal …
Read the rest »