TRUST COMPANIES IN THE DUTCH CARIBBEAN
A license is required
One or more Netherlands Antilles legal entities or companies (offshore companies) are inserted in many international group structures. This is mainly done for tax purposes. Another reason for using a Netherlands Antilles company may be to have a company with a seat in a respected jurisdiction with a well functioning legal and court system. The ‘ultimate beneficial owner’ of these companies will generally, directly or indirectly, put the board of these Netherlands Antilles legal entities and the administration of these companies in the hands of company service providers a.k.a. trust companies.
Netherlands Antilles company law grants the …
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MARKETING EFFORTS BY FOREIGN COMPANIES IN ARUBA AND TAX CONSEQUENCES
Permanent establishment creates a taxable presence
Foreign companies wishing to promote their products in Aruba may ask the question whether marketing activities result in taxable activities in Aruba.
In Aruba the profit tax law applies the concept of a permanent establishment that creates a taxable presence without providing a definition. In practice it is understood that the concept includes representatives though also that certain activities will not lead to a taxable presence, as is the case in the definition used in the Tax Arrangement for the Dutch Kingdom which applies to Aruba, the Netherlands Antilles and the Netherlands.
The most relevant exemption is the one …
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NATALEE HOLLOWAY CASE: ETHICAL AND OTHER ISSUES
Undercover operation and huge TV circus ethical?
Crime reporter Peter R. de Vries paid the 34-year old business man who befriended and secretly recorded Joran van der Sloot some US$ 35,000. Bounty hunters are a well-known phenomenon, also on TV, as are rewards offered by police or private persons. We have all seen episodes of ‘America’s Most Wanted’. I guess it is common knowledge these days that one can serve both the law and one’s own wallet simultaneously.
The business man gained Joran’s trust, also by smoking marijuana with him (click here). So the question arises, exaclty how stoned …
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NATALEE HOLLOWAY: CASE SOLVED?
Not yet, not yet at all
Dutch television aired a videotape last Sunday (3 February 2008), in which Joran van der Sloot says he was with Natalee Holloway on an Aruban beach when she apparently died and that a friend of his with a boat disposed of Holloway’s body (further details here on CNN and here). According to crime reporter Peter R. de Vries, the case is now solved. But is it really? To be honest: not yet, not yet at all.
From a legal point of view, there are at least …
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REFORMING DUTCH CARIBBEAN INSURANCE LAW
Draft bill presented
Last month a draft bill for new statutory provisions governing insurance contracts was presented for debate to professional circles such as insurance companies, intermediaries, the chamber of commerce, consumer organizations, the bar association, and the central bank. The author of the draft is Prof. Jan de Boer, member of the Netherlands Antilles and Aruba court of appeals. A large part of the new legislation is comprised of codification of existing case law. Several stipulations follow from standard case law of the Dutch Supreme Court which, pursuant to the Supreme Court Appeals Act for the Netherlands Antilles, also acts …
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ATTRACTING FUNDS IN THE DUTCH CARIBBEAN
Attracting funds from the public at large is prohibited
Article 45 of the Netherlands Antilles Ordinance on the Supervision of Banks and Credit Institutions 1994 (‘Landsverordening Toezicht Bank- en Kredietwezen 1994’) prohibits anyone from directly or indirectly turning to the public in the Netherlands Antilles with a view to attracting funds with the exception of credit institutions possessing a permit to do so.
This prohibition also applies to the offering of certain types of securities, e.g. bonds, for which an exemption must be obtained from the Bank of Netherlands Antilles if the moneys will be attracted by any other party than a credit institution with a …
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PROTECTING YOUR GOODS AND SERVICES UNDER DUTCH CARIBBEAN TRADEMARK LAW
Battle of the Stripes: Who will win?
Like many of its customers wearing the very popular 3-stripe pattern, Sporting goods giant Adidas enjoys a good, sportive battle with opponents. However, in the case of Adidas, the battleground is not the football pitch, or the basketball or tennis court, but the legal arena. And, unlike many sports games, it is not (just) about honor or glory. For Adidas, the stakes are much higher. What’s at stake is the scope of protection of its very famous, and commercially valuable, 3-stripe trademark which can be seen on the clothes and …
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THE RIGHT OF PLEDGES IN THE EVENT OF A BANKRUPTCY UNDER DUTCH CARIBBEAN LAW
Pledgee may exercise rights as if there is no bankruptcy
Article 53 paragraph 1 of the Bankruptcy Act of the Netherlands Antilles states that a pledgee can exercise its rights as if there is no bankruptcy. Permission or co-operation of the trustee in bankruptcy is not required.
Article 53 paragraph 2 of the Bankruptcy Act, however, provides that if it concerns claims of which it is uncertain when they are due and payable (‘opeisbaarheid onzeker is’) or which contain a right to periodical payment or a condition precedent or subsequent, the pledgee can only execute its pledge after verification of …
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WHAT IS DUTCH CARIBBEAN CORPORATE LAW ABOUT?
A broad concept
Corporate law is a broad concept. A Netherlands Antilles corporate lawyer (attorney) deals with a variety of matters, inter alia, the original establishment of businesses, the initial capitalization, ongoing financing transactions (private equity and debt), corporate governance, (cross-border) contractual relationships, joint ventures, shareholders’ agreements and directors’ liability.
This area of practice also includes advice on restructuring, exit-strategies (whether by private sale or initial public offering), (domestic or cross-border) mergers & acquisitions (hostile or friendly), E-Commerce, limited partnerships and tender offers. I didn’t mention tax issues yet, but it goes without saying that in many cases a corporate lawyer …
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SEIZING ASSETS IN THE DUTCH CARIBBEAN
Court approval required
Seizing the assets of a counterparty may already be possible before a claim (e.g. under an agreement or a guarantee) is already due and payable, but where there is good reason to believe that, when it becomes due, the other party will not honor its obligations.
How assets may be seized depends upon the jurisdiction in which these assets are located at the time of the envisaged seizure. In the Netherlands, Aruba and the Netherlands Antilles this is normally done by a bailiff (process sever) at the request of the creditor. It does require court approval though this is normally easily obtainable.
The …
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UNLAWFUL ACTS UNDER THE LAWS OF THE DUTCH CARIBBEAN
Several requirements apply
Article 6:162 section 1 Netherlands Antilles Civil Code (NACC) stipulates four conditions for someone’s obligation to compensate damage based on an unlawful act (tort):
Article 6:163 NACC provides for an exception to the general rule of article 6:162 NACC: “There is no obligation to repair damage when the violated norm does not have as its purpose the …
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BARACK OBAMA: WHAT HAS THE DUTCH CARIBBEAN TO GAIN OR TO LOSE?
What if he becomes the next President of the U.S.?
We have seen the results in Iowa and New Hampshire: Barack Obama gained much attention and got many votes. So there is a (slight) chance that he might be the Democratic candidate in the U.S. Presidential race, although no one should underestimate Hillary Clinton. Obama might even win the race, although no one should underestimate John McCain either.
Theoretically, Barack Obama could be the next President and if so, for argument’s sake, how would that affect the Dutch Caribbean? In 2007, three U.S. Senators proposed a bill against tax havens and tax paradises. This …
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