THE LAWYER AS CRAFTSMAN
Tradition and resourcefulness
You could hear these statements just about anywhere: “The study of law is a dull study. You have to read a lot of books and especially learn a lot by heart. But luckily it is not a difficult study. It is more or less the easiest study to graduate in.” Is all this true? It depends and it depends particularly on yourself. For ‘marginalists’ and notorious ‘superficial thinkers’ all this is more or less at a premium. But it is questionable whether these are the people who have the right qualities to practice the craftsmanlike profession of …
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WHY WOULD SOMEONE BECOME A LAWYER?
The story of Saint Yvo (1253-1303)
Without being sworn in to the Bar it is not possible to call yourself an advocate (lawyer; advocaat) in the Dutch Caribbean. Being sworn in as an lawyer is for any beginner a high point, a clear start. The lawyer undertakes responsibility and does this under oath.
Art. 3 par. 2 of the Dutch Caribbean ‘Advocatenlandsverordening 1959‘ [Lawyers National Ordinance 1959] prescribes the following oath or affirmation:
“I swear (affirm) loyalty to the King, compliance with the Charter and the National Regulations, respect for the judicial authorities and that I shall not recommend or defend …
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SUPERVISORY DIRECTORS OF A CURACAO INSURANCE COMPANY
The Central Bank has issued guidance notes
According to the Curacao Ordinance on the Supervision of the Insurance Business, a Board of Supervisory Directors of an insurance company shall have the task of supervising the policy of the Management Board of such company and the general course of events of the insurance company and the business associated with it. It shall advice the Management Board. In carrying out its duties the Board of Supervisory Directors shall take into account the interests of the insurance company and the business associated with it (Article 16 par 4 Ordinance).
‘The actions and records of …
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PROPOSED REVIEW CORPORATE CODE ON ULTRA VIRES
The rules with regard to ultra vires are fundamentally changed
Ultra vires means ‘beyond power or authority’. An ultra vires act is one beyond the purpose clause as laid down in the Articles of Association of a legal entity, for instance a foundation or a limited liability company (NV or BV).
Early in 2010, a draft bill was proposed to amend the Corporate Code (Book 2 Civil Code) of Curacao, St. Maarten, Bonaire, St. Eustatius and Saba (which formerly constituted the Netherlands Antilles). Among other things, the provisions with regard to ultra vires acts (transgression of the object) have been …
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ELECTRONIC AGREEMENTS IN CARACAO AND SINT MAARTEN
The Dutch Caribbean digital signature exists for over 10 years
The Curacao Ordinance on Electronic Agreements a.k.a. the Curacao Ordinance on agreements concluded electronically (Landsverordening overeenkomsten langs elektronische weg) became effective on 1 January 2001. The Ordinance in St. Maarten is similar to the one in Curacao.
The Ordinance provides that an electronic signature shall have the same legal effect as a hand-written signature, and may be admitted as evidence in legal proceedings. An electronic signature is described as electronic data which are attached to or have a logical association with other electronic data and are used as a tool …
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VOLUNTARY DISCLOSURE AND THE HUNT FOR UNDISCLOSED ACCOUNTS BY US AND DUTCH TAX AUTHORITIES
Propaganda machines up to speed
Publicity efforts by the US and Dutch tax authorities indicate that the hunt for undisclosed accounts in typical offshore jurisdictions is still a hot item. Although Curacao was not mentioned by the US authorities, the Dutch tax authorities announced a new search for undisclosed accounts in Curacao based on information provided by the French tax authorities. The IRS announced a new voluntary disclosure program which mitigates the risk of criminal prosecution in exchange for paying taxes, interest and a standardized penalty. Furthermore, the IRS announced that they will follow ‘new leads’ emanating from voluntary disclosures. …
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THE DUTCH CARIBBEAN AND ROME I AND ROME II
Nothing has changed as of 10-10-10
The Country the Netherlands Antilles consisted of Bonaire, Curacao, St. Maarten, St. Eustatius and Saba, and formed part of the Kingdom of the Netherlands. On October 10, 2010 the Netherlands Antilles ceased to exist as a country. Two new countries were born on that date: the country Curacao and the country St. Maarten. The three remaining islands (Bonaire, St. Eustatius and Saba, a.k.a. the BES-islands) became special overseas territories (sort of municipalities) of the Netherlands. The question is whether the new status of the islands mentioned means that treaties to which the Netherlands is …
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INTERNATIONAL NON-CONTRACTUAL LIABILITY FROM A DUTCH PERSPECTIVE
Introduction
Financial law is not an exclusively national affair. Cross-border transactions and service provisions have been common place for a very long time. Harmonisation of rules has been worked towards in a European context for decades. Leaving aside special subject matters such as liability for products and road accidents, the (partial) harmonisation of the rules in respect of the cross-border tort (wrongful act) has only relatively recently been realised.
Rome II, which concerns the law applicable in respect of non-contractual obligations, has been in force in the Netherlands since 11 January 2009. It applies to non-contractual obligations which have arisen after that …
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WHAT YOU MAY EXPECT OF YOUR LAWYER
Quality, Clarity, Trust, Value for Money, Passion and Compassion
Whether you live in the UK, the USA or the Dutch Caribbean, almost every lawyer (attorney) or law firm claims to be the best, the leading, etc. Why are they all trying so hard? And does this do the trick for you? Even more importantly, does your lawyer meet your expectations? What may you expect from your lawyer after all? I will only address a number of the relevant issues here.
In many cases and for many clients, the size of a law firm is not of much importance. What is …
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A PUBLIC LIMITED LIABILITY COMPANY AND LEGAL PERSONALITY
Dutch Supreme Court, Decision of 18 January 1901
Suppose you and several of your friends decided to combine your financial resources to start a business. You subsequently agreed on the incorporation of a limited liability company (NV). You also agreed on the amount each of you would put into the NV and the number of shares each of you would receive in return for this capital contribution. You and your friends then visited the civil law notary and a notarial deed incorporating the NV was executed. The NV now exists.
However, although you and your friends paid their respective capital …
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REQUESTS FOR INFORMATION BY FOREIGN TAX AUTHORITIES
A request for information needs to contain specific information
The former Netherlands Antilles concluded several tax information exchange agreements (‘TIEA’) during recent years. These TIEAs also apply to the newly formed country Curacao. The Tax Arrangement for the Kingdom (‘TAK‘) is applicable within the Kingdom of the Netherlands, which includes Curacao. Article 37 of the TAK also contains the facilities for the exchange of information within the Kingdom.
Without a TIEA in place or a specific article in a double tax treaty facilitating the exchange of information between the treaty parties, the Curacao tax authorities would be prohibited from effectively exchanging …
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PROPOSED REVIEW DUTCH CARIBBEAN CORPORATE CODE
Various proposals not yes discussed here
The prohibition of appointing Supervisory Directors besides a ‘one-tier Board’ will be deleted (Article 2:19 paragraph 1 proposed bill). Supervisory Directors being a legal entity are allowed to a limited extent (Article 2:19 paragraph 3 proposed bill).
For the NV and the BV the law determines who has the right to attend meetings (Article 2:129/229 proposed bill). Unfortunately, in this connection no attention is given to the holders of depositary receipts for shares. In the case of concurred depositary receipts (i.e. certificates released with the co-operation of the corporation) I would prefer to grant the holders …
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