CURACAO FUNDS AND ADMINISTRATORS
Statutory requirements applicable to the organizational and legal structure
The National Ordinance on the Supervision of Investment Institutions and Administators (Landsverordening regelende het toezicht op beleggingsinstellingen en administrateurs; NOSIIA) provides for a regime of supervision for investment institutions and administrators with the objective of an adequate operation of the financial markets and the protection of investors in such markets.
With regard to the business operation of a local fund that operates within the scope of the NOSIIA it provides for requirements applicable to the organizational and legal structure as expressed in the fund’s constitutive documents. Such requirements address the conditions …
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SEMINAR ONDERNEMINGSRECHT
22, 23 en 24 oktober 2012
Het ondernemingsrecht is continu in beweging. Hier bij ons in Curacao, maar ook in Nederland. Boek 2 van het Burgerlijk Wetboek Curacao is op 1 januari 2012 op tal van punten gewijzigd. Wat houden deze wijzigingen precies in? Wat betekent de invoering van de Flex-BV in Nederland per 1 oktober 2012 voor Curacao?
Denk wat Curacao betreft bijvoorbeeld ook aan de invoering van een integrale regeling inzake het enqueterecht per 1 januari 2012. Het is nu mogelijk om het Hof van Justitie een of meer onderzoekers te laten benoemen om onderzoek naar (vermeend) wanbeleid …
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CIVIL PROCEEDINGS IN CURACAO
Information for foreign plaintiffs
Are there any particular issues that concern foreign plaintiffs in Curacao? If proceedings on the merits are initiated by a non-resident plaintiff, the defendant may ask the court to order that the plaintiff provide security for damages, costs and interest which it might be liable to pay as a result of the judgment in aforementioned proceedings. This ‘cautio judicatum solvi’ does not apply if there is a Convention (Treaty) on legal proceedings between Curacao and the plaintiff’s country.
Can attorney costs for legal proceedings be recovered? Generally speaking, each party has to bear its own attorney …
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INADEQUATE CAPITALIZATION OF A CURACAO COMPANY
Liability for thin-capitalization?
A shareholder is not personally liable for acts performed in the name of the company and is not liable to contribute to losses of the company in excess of the amount which he must pay to the company as contribution for his shares.
In terms of ‘piercing the corporate veil’, thin or inadequate capitalization usually means capitalization that is not in proportion to the nature of the risks the business of the corporation necessarily entails; in other words it is based on likely economic needs rather than legal requirements. In almost all jurisdictions, undercapitalization as such is …
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DUTIES OF A MANAGING DIRECTOR OF AN NV OR BV
Acting in the best interests of the company
Although not explicitly provided for in Book 2 of the Civil Code of Curacao (“CCC”), it is considered a general rule of corporate law that the management board (a.k.a. board of directors) must act in the best interests of the company (an NV or BV) in the performance of its duties, even when acting on instructions from others (e.g. shareholders). This includes the interests of the shareholders, the employees and, according to most legal writers, the creditors of the company.
The management board also has a duty to account to the general …
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CURACAO AND ITS DEFICIT
Who do we have to thank for the conservatorship?
Recently, a lot has been written and said about the fact that Curacao is under some kind of conservatorship (or guardianship). In this case conservatorship means something like: not being allowed to take your own (financial) decisions without the approval of a supervisor. How could it have come this far?
In the run-up to the dissolution of the Netherlands Antilles a debt restructuring program was extensively discussed and negotiated. At the time, there was a debt of several billions. Eventually, the Netherlands was prepared to provide several billions, so Curacao and St …
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COURTS AND OMBUDSMAN REPORTS
Ombudsman reports are taken seriously
An Ombudsman determines whether a complaint is justified or not. If the Ombudsman finds that a complaint is justified or has merit, he may decide to try and persuade the government or government agency to change its policy or decision. This topic, however, is about an Ombudsman report resulting from a complaint primarily filed to establish whether there were sufficient grounds to initiate legal proceedings in a regular court. A lawyer and his client may decide to submit the Ombudsman report to the court, in the course of proceedings, as evidence that supports the client’s …
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OMBUDSMAN INVESTIGATION
Ombudsman beneficial to lawyers and their clients?
In several jurisdictions the law provides that, with certain exceptions, a statement made or an answer given by a person during an investigation by the Ombudsman, and a report or recommendation of the Ombudsman, is inadmissible in evidence in a court or in any other proceeding.
As far as legal proceedings in the Dutch Caribbean are concerned, our laws do not prohibit an Ombudsman’s report from being introduced into a civil lawsuit. Based on an Ombudsman’s report one may report a case to the police or the public prosecutor’s office. It should be …
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LAWYERS COMPARED TO OMBUDSMEN
Tarzan in the administration jungle
I will not go into too much detail regarding the role and nature of an Ombudsman and investigations carried out by him. The role of Ombudsman is known in many jurisdictions and they can, just like lawyers, be found in all types and sizes. Some are described as “Tarzan in the administration jungle”. I will merely attempt to only highlight a few of the differences between an Ombudsman and a lawyer.
An Ombudsman is the obvious person for civilians to approach with their complaints about government and government agencies. The main task of the Ombudsman …
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LAWYERS IN THE DUTCH CARIBBEAN
What is a lawyer?
For people dealing with lawyers it is of importance to understand lawyers as a profession and what they may be after in a particular case. I will therefore briefly discuss the nature of this centuries old profession.
Well, what is a lawyer? The answer depends on the context in which this question is posed. In the Dutch Caribbean Islands (Aruba, Bonaire, Curacao, Saint Maarten, Saint Eustatius and Saba) for instance it is a regulated and protected profession like in most other countries.
The Advocatenlandsverordening 1959 [Lawyers National Ordinance 1959] talks about persons who practice a profession …
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GOVERNMENT AND CORPORATE GOVERNANCE (V)
Government drafted model articles of association
The first model articles of association date from March 15, 2011.
For criticism see: K. Frielink, Visie Land op overheids-NV’s verkeerd [Vision Country on government-owned NVs incorrect], Antilliaans Dagblad 15 April 2011, p. 16 and M.L. Alexander, F.B.M. Kunneman, L.G. Santine and R.J. in ’t Veld, Modelstatuten ten sterkste afgeraden [Model articles of association strongly discouraged], Antilliaans Dagblad 20 September 2011, p. 14-15. See also K. Frielink, Stop politieke benoemings- en ontslagcarrousel [Stop politicial appointment and dismissal merry-go-round], Antilliaans Dagblad 14 September 2010, p. 14-15.
In the meantime, the models for …
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GOVERNMENT AND CORPORATE GOVERNANCE (IV)
Code Corporate Governance Curacao
On January 1, 2010, the National Ordinance regarding corporate governance came into effect. Based on this the Code Corporate Governance Curacao came into being, that also came into effect on January 1, 2010. In it, reference is still made to the Executive Council and the island territory of Curacao, but as from October 10, 2010 these are understood to mean the government of Curacao and the Country Curacao.
The National Ordinance does not only undertake to establish a corporate governance code, but also to implement the Code in the government-owned companies. In 2011, this implementation obligation …
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