CROSS BORDER CONVERSION AND MERGER (part 9)
The cross-border merger
We now look at the cross-border legal merger. Before 1 January 2012 the possibility already existed in Curacao that in connection with a merger, a foreign legal entity as the disappearing legal entity could merge with a comparable legal form of Book 2 of the Civil Code on the condition that the law governing that foreign legal entity was not incompatible with the merger and the manner in which it was brought about (Section 2:323a of the Civil Code). This inbound merger possibility still exists.
Since 1 January 2012 it is also possible that a legal entity …
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CROSS BORDER CONVERSION AND MERGER (part 8)
Changes in Curacao as of 1 January 2012
The most important amendment in the Curacao provision with regard to the conversion of an NV or BV into a foreign legal entity (outbound) is that the requirement of the personal notice of liability by managing directors and shareholders has been removed as from 1 January 2012 onwards, except for the case mentioned below. This provision has been replaced by the possibility for creditors or contractual counterparties of the company wishing to convert into a foreign legal entity to lodge an objection on the grounds that they will be prejudiced in their …
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CROSS BORDER CONVERSION AND MERGER (part 7)
The conversion of or into a foundation
If a foreign legal entity wants to be converted into a Curacao foundation (inbound) the Court in Curacao must grant consent (Section 2:303 subsection 2 of the Civil Code). I was unable to find any explanation of this in the Explanatory Memorandums of Book 2 of the Civil Code of 2003 and 2010.
That authorization by the court is required for the conversion of a foundation into another – whether or not foreign – legal form, can certainly be explained (Section 2:306 subsection 2 in conjunction with Section 2:300 subsection 4 of the …
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CHAMBERS AND PARTNERS QUALITY RANKINGS 2013
Spigt Dutch Caribbean still a number 1 firm
International publisher Chambers and Partners published its global ranking of law firms ‘Chambers Global’ on 14 March 2013. In its survey Chambers Global 2013, Chambers and Partners ranks Spigt Dutch Caribbean as Leading Firm.
Chambers in its survey:
This corporate heavyweight continues to attract plaudits for its wide-ranging expertise, and is particularly commended for its strength in tax and litigation work. The 13-strong team advises prestigious local and international clients on securities, …
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CROSS BORDER CONVERSION AND MERGER (part 6)
The conversion under the law of Curacao
Back to Curacao and the doctrine of conversion. I only intend to discuss several aspects of this. The conversion has been provided for in Sections 2:300 et seq. of the Civil Code. The conversion of a foreign legal entity into a Curacao entity has been provided for in Section 2:303 of the Civil Code (immigration).
The cross-border conversion of the NV and the BV into a foreign legal entity has been provided for in Sections 2:304 and 2:305 of the Civil Code, and the provisions for a foundation which wants to be converted …
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CROSS BORDER CONVERSION AND MERGER (part 5)
Aruba
Aruba has already been ‘a foreign country’ for quite some time compared with Curacao for instance. After Aruba left the Netherlands Antilles, a transfer of seat to or from the Netherlands Antilles was no longer possible. If there was a desire to transfer the seat of a company registered in Aruba to Curacao or the other way around, this had to be done via a detour for instance first a transfer of seat to the Cayman Islands and then a transfer through to Curacao or Aruba respectively.
On 1 January 2009 the company with limited liability (VBA) was introduced …
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ORDER OF THE COMMON APPEAL COURT OF CURACAO CONCERNING THE RIGHT TO INSTITUTE AN INQUIRY
The Appeal Court has taken several fundamental decisions
On 5 March 2013 the Common Court of Justice of Aruba, Curacao, Sint Maarten and of Bonaire, Sint Eustatius and Saba (case: Ghis 55769 – HAR 28/12) issued an order in connection with inquiry proceedings. This order contains three major considerations.
The right of legal entities (including public limited companies [NV] and private companies with limited liability [BV]) to institute an inquiry was introduced in Curacao on 1 January 2012. Almost immediately after this introduction an application for instituting inquiry proceedings was submitted to the Appeal Court. The facts …
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BESCHIKKING INZAKE ENQUETERECHT GEMEENSCHAPPELIJK HOF CURACAO
Het Hof neemt enkele principiële beslissingen
Op 5 maart 2013 heeft het Gemeenschappelijk Hof van Justitie van Aruba, Curaçao, Sint Maarten en van Bonaire, Sint Eustatius en Saba (zaak: Ghis 55769 – HAR 28/12) een beschikking in het kader van een enquêteprocedure gegeven. Drie belangrijke overwegingen worden hier genoemd.
Het enquêterecht voor rechtspersonen (waaronder naamloze en besloten vennootschappen) is in Curaçao op 1 januari 2012 ingevoerd. Vrijwel direct na de invoering is een enquêteverzoek bij het Hof ingediend. De feiten die aan dat verzoek ten grondslag zijn gelegd hebben betrekking op de jaren voorafgaande aan de invoering van het enquêterecht. …
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CROSS BORDER CONVERSION AND MERGER (part 4)
From Bonaire to the Netherlands?
In 2011 attempts were made to transfer a BV with its registered seat in Bonaire to Rotterdam by means of an amendment to the articles of association whereby the old registered seat was replaced by the new one and the articles of association of the BV were organized according to the Dutch Book 2 of the Civil Code. The Chamber of Commerce in Rotterdam refused the registration of that BV. The Chamber of Commerce held the view that this course of events contravened the Act of the Kingdom on the Voluntary Transfer of Seat and …
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LECTURE ON GOOD CORPORATE GOVERNANCE
Looking back on the future: the further development of corporate governance in Curaçao
A seminar on Checks and Balances in Corporate Governance on Curacao, was held on Thursday February 21st, 2013. More than 125 interested managing directors, supervisory directors, lawyers, accountants and other participants were in attendance.
The seminar was organized by the Board of financial supervision (College financieel toezicht – Cft), the Foundation Bureau for Supervision and Standardization Government Entities (Stichting Bureau Toezicht en Normering Overheidsentiteiten – SBTNO) and the Dutch Caribbean Accountants Association (DCAA). I had the honor to speak on the present and future of the Corporate …
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CROSS BORDER CONVERSION AND MERGER (part 3)
Within the Kingdom
Under the Transfer of Seat Ordinance it is for instance impossible to transfer to Aruba or St. Maarten. Article 38 paragraph 4 of the Charter of the Kingdom of the Netherlands provides that the subject of transfer of seat of legal entities must be regulated in a Kingdom Act. Agreement between the governments of the countries is required for this provision. For as long as that subject has not been regulated in a Kingdom Act, a transfer of seat within the Kingdom is not possible; because cross-border conversion can be materially equated with it, it is assumed …
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CROSS BORDER CONVERSION AND MERGER (part 2)
Transfer of the seat
The cross-border conversion was already known in the past as the doctrine of the transfer of the seat. Just a few words about this.
The transfer of seat had been regulated in the Transfer of Seat to Third Countries Ordinance (Landsverordening zetelverplaatsing derde landen). This Ordinance was repealed as from 1 March 2004 onwards; this system has been replaced by the cross-border conversion system. However, see Section II of the Repair Act of 24 December 2004, P.B. 2004, 198, which revives this Ordinance for certain companies: in the event that a public limited company (NV) had, …
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