LAWYERS AND BILLABLE HOURS
What is wrong with this exactly?
You read everywhere that law firms (lawyers, advocates, attorneys) have to change. Lawyers are too conservative. They hold on to the past and are anything but innovative. As the economic climate deteriorates the call for change becomes increasingly stronger.
The system of “hourly rate billing” in particular has to take the rap. Lawyers are reproached for billing hours with a fork, not working efficiently and being too expensive. The system apparently has the wrong incentives, partly because it is difficult to check the actual number of hours spent efficiently.
Anyone who becomes aware of …
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AVIATION – OPEN SKIES AGREEMENT WITH BRAZIL
Brazilian airlines are looking to use Curaçao as a hub to the United States of America
According to various news publications Curaçao entered into a bilateral air services agreement, on an open skies basis, with Brazil. The bilateral air services agreement makes it possible for airlines of both countries to start air services between Curaçao and Brazil. The agreement applies both to carriage of passengers and carriage of cargo.
Two years ago a Memorandum of Understanding (MoU) was signed between Brazil and Curaçao to enter into a bilateral air services agreement. Pursuant to the MoU, Minister Earl Balborda signed the …
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THE COURT OF LAST RESORT
Curaçao court as court of last resort for civil matters
An attachment on assets located in Curaçao generally establishes jurisdiction over the cause of action for which the attachment is made, also if neither of the parties involved are domiciled in Curaçao.
According to Section 767 of the Curaçao Code of Civil Procedure, the Curaçao court is competent to hear a case on the merits (i.e. has (international) jurisdiction) if there are no other means of obtaining an enforceable order in Curaçao (first condition).
This condition will not be met if, for instance, in respect of a claim an arbitrator …
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150 JURIDISCHE PUBLICATIES
Een persoonlijke mijlpaal
Afgelopen donderdag was het dan zo ver: mijn 150e juridische publicatie zag het levenslicht. Het gaat om mijn bijdrage aan het Liber Amicorum ‘Christels Koers’ dat toen werd aangeboden aan prof.mr. drs. C.M. Grundmann-van de Krol: “Openbaarmaking door de financiële toezichthouders”. De volledige lijst met publicaties is hier te vinden.
Nummer 151 is overigens al geschreven en is in het komende nummer van het Caribisch Juristenblad te vinden. De meer dan 850 stukken die op deze weblog staan heb ik uiteraard niet meegeteld…
Karel Frielink Attorney (Lawyer) / Partner
(2 December 2013)
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CHALLENGING THE VALIDITY OF A CONTRACT
Based on error, fraud or undue influence
The validity of a contract can be challenged on various grounds, including error, fraud or undue influence. In the case to be discussed here a contract was entered into by an intermediary. Appellants in cassation (Van Eendenberg) were owners of the parcels on which a preferential right was established pursuant to the (Dutch) Municipalities (Preferential Rights) Act. In view of the sale of those parcels, in so far as municipalities should need them for house construction, they have entered into a brokerage agreement with Agromak BV.
Its director then acted as an intermediary …
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US LAW GOVERNED AGREEMENTS
Curaçao and St. Maarten Courts will accept the choice of laws
One of the questions frequently asked is whether the Courts in Curaçao or St. Maarten, if an action is brought before them, will pay deference to a “choice of governing law” and/or venue provision in an agreement, in particular when the parties have chosen US Law, and a US Court to resolve their disputes.
The choice of the laws of (a particular State of) the United States of America as the laws governing an agreement is valid and binding under the laws of Curaçao/St. Maarten, and will therefore be …
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ELECTRONIC MONEY INSTITUTIONS IN ARUBA
A license is required
The European Central Bank defines e-money as follows (a non-legal definition): “E-money can be defined as any amount of monetary value represented by a claim issued on a prepaid basis, stored in an electronic medium (for example, a card or computer) and accepted as a means of payment by undertakings other than the issuer, predominantly for small-value transactions (for example, the settlement of modest transactions over the Internet and of parking or telephone charges and payment for public transport services).” (Electronic Money Institutions. Current trends, regulatory issues and future prospects. Legal Working Paper Series, No. 7/2008).
THE ARTICLES OF ASSOCIATION OF A CURAÇAO COMPANY (III)
Controlling minority?
Such a situation (i.e. example 2) is possibly less desirable from the company’s perspective, certainly where the more essential decision-making is concerned. Although decisions should be taken on the basis of a discussion of content and it will not always be possible to predict how the meeting of shareholders will vote, the possibility of ‘accidental’ majorities (whereby a minority shareholder nevertheless has the majority through the absence of others at the meeting of shareholders) leads to less predictability, or at least to greater uncertainty.
If a company has, for example, one 30% shareholder and the remaining 70 shareholders …
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THE ARTICLES OF ASSOCIATION OF A CURAÇAO COMPANY (I)
Comparable with a constitution
The articles of association of a Curaçao company (a public [NV] or private [BV] limited liability company) are somewhat comparable with a constitution or state regulations: the articles of association comprise – like the law, but also additionally to the law and, where permitted, unlike the law – the rules of play (rights, obligations and powers) to which all the organs of the company (managing board, supervisory board, shareholders’ meeting) and the members of those organs must adhere or on which they can rely.
The law of Curaçao does not prescribe that a special (or qualified) …
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VALIDLY REPRESENTING A CURACAO COMPANY
Extract and Articles are of importance
Limited liability companies like the Curaçao NV or BV are legal entities. Whether or not a managing director has the authority to validly represent a company can be derived from the extract from the Trade Register of the Chamber of Commerce of Curaçao together with the articles of association of the company.
However, it could be the case that the company has further regulations from which representation limitations follow. This should be assessed on a case by case basis.
A counterparty may rely on a written statement from the board of managing directors or …
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ANTI-MONEY LAUNDERING LAWS IN CURACAO
Money laundering is prohibited
Title XXXI of the Penal Code of Curaçao basically prohibits any type of money laundering.
The National Ordinance on the Reporting of Unusual Transactions (NORUT) obliges service providers acting in the course of a business or profession, to report unusual transactions.
The National Ordinance on Identification of clients when Rendering Services (NOIS) requires any service provider who is acting in the course of a profession or business, to establish the identity of a customer before providing any “financial” service.
Generally, these Ordinances apply when services are conducted in or from Curaçao. If a foreign financial institution does …
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IMPACT OF THE LIABILITY TO THE DIRECTOR OF THE DIRECTOR (II)
2nd degree director as director of a foreign corporate director
It appears from the 2011 ruling referred to by the Supreme Court that Section 2:11 of the Dutch Civil Code is applicable to the joint and several liability of a director of a Dutch legal entity being a director of another Dutch legal entity. The Supreme Court confirmed this doctrine again in clear wording in its decision of 21 June 2013.
The conclusion is as follows:
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