Aspects of director’s liability Management services companies a.k.a. trust companies (‘trustkantoren’) can face liability as a result of how they have performed trust and management services to their clients, and in particular when acting as managing director (‘statutair directeur’) of a legal entity, whether alone or together with others. A trust company acting as managing… Continue reading LIABILITY OF MANAGEMENT SERVICES COMPANIES
Tag: liability
QUASI DIRECTORS UNDER DUTCH AND DUTCH CARIBBEAN LAW
The topic of my dissertation I am regularly asked by English speaking people what my PhD-dissertation is about. As part of my PhD, I researched the liability of persons who have not been appointed as director according to Book 2 of the Civil Code and the articles of association (formal, also de iure, directors) of… Continue reading QUASI DIRECTORS UNDER DUTCH AND DUTCH CARIBBEAN LAW
LIABILITY OF THE BANKRUPTCY TRUSTEE
No policy freedom when bound by rules Some years ago, I wrote about conflicts of interest in insolvency law matters (Tijdschrift voor Insolventierecht 4/2001, p. 115-123). I then wrote that the special characteristics of the task of a bankruptcy trustee imply that his personal liability, if any, must be assessed against a standard of due… Continue reading LIABILITY OF THE BANKRUPTCY TRUSTEE
DELAWARE CASE-LAW ON FIDUCIARY DUTIES
Good faith, not a good result, is what is required of the board According to the Delaware Court of Chancery in its decicion of 18 October 2016 regarding Capital One (click here), the standard under Delaware law for imposing oversight liability on a director (sometimes referred to as Caremark liability) is an exacting one that… Continue reading DELAWARE CASE-LAW ON FIDUCIARY DUTIES
THE ARUBA PUBLIC LIMITED LIABILITY COMPANY
Managing and supervisory directors’ liability I will refer only to the Aruba NV type of company, otherwise known as the public limited liability company, governed by the Commercial Code of Aruba. Furthermore, I will discuss only the basic concept of managing and supervisory directors’ liability. Duties Section 106(1) of the Aruba Commercial Code (ACC) provides… Continue reading THE ARUBA PUBLIC LIMITED LIABILITY COMPANY
TYPES OF LIABILITY IN ARUBA
A three-part distinction With regard to liability a three-part distinction can be made. The first distinction relates to the basis of the liability: liability pursuant to a contractual relationship (the attributable failure in this respect) and liability pursuant to a wrongful act. Another distinction relates to the personal liability (thus for the party’s own actions… Continue reading TYPES OF LIABILITY IN ARUBA
LIABILITY OF COMPANY DIRECTORS
No derivative suit It is considered a general rule of Dutch Caribbean 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… Continue reading LIABILITY OF COMPANY DIRECTORS
NO DERIVATIVE ACTION IN CURACAO
A claim based on tort is possible though Curaçao corporate law does not provide for any derivative suit mechanism (and neither do the laws of Aruba, St. Maarten and the BES-islands). This matter was first decided in the cases of Poot v. ABP, Hoge Raad (Dutch Supreme Court) 2 December 1994, NJ 1995, 288, and… Continue reading NO DERIVATIVE ACTION IN CURACAO
FRAUDNET – THE POWER OF ONE GLOBAL NETWORK
FraudNet in action According to The Irish Times, lawyer Antenor Pereira Madruga Filho (a member of FraudNet) is hired by the Irish Government to represent it in a high-profile case involving a lawyer who fled Ireland in 2007 with debts of €80m. The lawyer was arrested in Brazil almost two years ago and has been… Continue reading FRAUDNET – THE POWER OF ONE GLOBAL NETWORK
DUTIES OF A MANAGING DIRECTOR OF A DUTCH CARIBBEAN NV OR BV
Acting in the best interests of the company Although not explicitly provided for in Book 2 of the Civil Codes of Curacao, St. Maarten and the BES-islands (Bonaire, St. Eustatius and Saba) (“CC”), it is considered a general rule of corporate law that the management board (a.k.a. board of directors) must act in the best… Continue reading DUTIES OF A MANAGING DIRECTOR OF A DUTCH CARIBBEAN NV OR BV
THE CONCEPT OF LIABILITY IN THE DUTCH CARIBBEAN
A three-part distinction With regard to liability a three-part distinction can be made. The first distinction relates to the basis of the liability: liability pursuant to a contractual relationship (the attributable failure in this respect) and liability pursuant to a wrongful act. Another distinction relates to the personal liability (thus for the party’s own actions… Continue reading THE CONCEPT OF LIABILITY IN THE DUTCH CARIBBEAN
LIABILITY OF THE SILENT PARTNER
The Supreme Court can give its opinion I will first describe Dutch law in this respect. A limited partnership (commanditaire vennootschap: ‘CV’) is a contractual, legal relationship between two or more persons or legal entities to carry on a business under a joint name, whereby the aim is to gain proprietary benefits on the basis… Continue reading LIABILITY OF THE SILENT PARTNER