CURACAO COURT INTERVENES IN POLITICAL APPOINTMENT
Political appointments unacceptable
The Court of First Instance of Curacao passed judgment on 23 January 2012 in the case of Selikor N.V. versus Drs. Ivar Asjes (JOR 2012, 105). This case is a follow-up to the judgment of the Joint Court of Appeal of the Netherlands Antilles and Aruba of 10 August 2010, JOR 2010, 296. In a nutshell the case boils down to Asjes being appointed as the managing director of waste processor Selikor N.V., but that this is an appointment pushed through politically without an open job application procedure. This deprived at least six of Selikor’s members of …
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MINISTER OF JUSTICE ECONOMICAL WITH THE TRUTH
Minister of Justice of Curacao should step down
The Antilliaans Dagblad today published the letter sent by Minister of Justice, Elmer ‘Kadè’ Wilsoe (PS), to Hillary Rodham Clinton and Eric H. Holder on 25 April 2012. From this letter it follows that Wilsoe tried to interfere with the investigation by the Public Prosecutor (OM) into Robbie Dos Santos, Ponsford Overseas and Tula Finance (the ‘Bientu’ investigation).
In an unrelated matter, Wilsoe stated in the Amigoe (7 July 2011): “The law offers me the possibility to give general instructions to the Attorney General in connection …
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DUTCH CARIBBEAN LEGAL PORTAL
Aruba, Bonaire, Curacao, St. Maarten, St. Eustatius and Saba
There is a large legal community in the Dutch Caribbean. Until 2007 there was no website with news and general information about the legal system of the Dutch Caribbean, its institutions and its practitioners. Dutch Caribbean Legal Portal aims to fill this void and strives to be the complete database of Legal News, Contacts and Documents for the Dutch Caribbean.
The DC Legal Portal has a wide variety of members and contacts within the legal and financial areas of the Dutch Caribbean. It has a database of more …
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INQUIRY PROCEDURE IN CURACAO
Important court decision for the local trust practice
On 30 March 2012 the first petition for an inquiry procedure under the new law was dealt with by the Joint Court of Justice of Aruba, Curacao and St. Maarten, and of Bonaire, St. Eustatius and Saba. Karel Frielink and Dinesh Mishre had the honor of acting as lawyers for the defense … and with success! This decision is very important for the companies in Curacao and especially for the local trust offices.
As of 1 January 2012 the amended Corporate Code (Book 2 Civil Code) of Curacao entered into force. The …
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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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REGULATORY LEGISLATION IN CURACAO
General requirements on the business operation
Regulatory legislation in Curacao does not distinguish between different kinds of products, such as for instance hedge funds, but is of a more general nature. The regulatory legislation of Curacao applicable to financial institutions is divided into four categories being: credit institutions, institutional investors, investment institutions & administrators and trust service providers.
The authority entrusted with the supervision on the financial institutions mentioned above is the Central Bank of Curacao and Sint Maarten.
The regulatory legislation does provide for general requirements on the business operation of the financial institutes involved. The National Ordinance on …
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CURACAO TRUST LEGISLATION
Entered into force on 1 January 2012
On January 1st 2012, new legalization entered into force pursuant to which it is now possible to set up a trust, similar to the trust in Anglo-Saxon common law jurisdictions, in Curacao. This trust is a legal exception to the paritas creditorum rule as we know it and serves as an important instrument which could be used for asset segregation purposes.
With the introduction of the Curacao Trust and the new paragraph 3 to section 231 of Book 3 of the Curacao Civil Code the need for a parallel debt construction in the …
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PARALLEL DEBT IN CURACAO
New legislation
It has become market practice in Curacao, and also in the Netherlands, to create a separate (parallel) obligation, owed by the borrower (or guarantor) to the security agent in its own name, on the terms and in an amount equal to the original (principal) obligations owing by the borrower (or guarantor) to the lenders.
The security rights are then granted to the security agent in its own name to secure the parallel debt. This “parallel debt” structure is usually reflected in the facility agreement and gives the security agent an own and independent right to demand payment by …
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ON THE GERMAN – DUTCH CARIBBEAN RELATIONSHIP
Interesting editorial in The Daily Herald (St. Maarten)
“The visit of German ambassador Heinz-Peter Behr last week should serve as an eye-opener on the largely untapped possibilities that European market offers. Up to now much of the attention regarding the “Old Continent” understandably regards the Netherlands and France from which “The Friendly Island” also has direct airlift, but Germany as Europe’s economic powerhouse and surrounding nations hold great tourism potential.
Curacao managed to attract Air Berlin flights recently and already has noticed a marked increase in the number of visitors from that part of the …
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INQUIRY PROCEDURE INTRODUCED IN CURACAO
The Joint Court is the forum of choice for corporate disputes
As per January 1, 2012 the amended Corporate Code (Book 2 Civil Code) of Curacao entered into force. The new legislation introduces a so-called inquiry procedure for, amongst others, limited liability companies. The inquiry procedure (a.k.a. investigation proceedings) can result in a court ordered investigation into the affairs of a corporation.
Shareholders of such a corporation (i.e. an NV or BV) may file a petition with the Joint Court of Justice of Aruba, Curacao and St. Maarten, and of Bonaire, St. Eustatius and Saba (the ‘Joint Court’). Pursuant to …
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