Legal Blog

Tuesday, January 29, 2013

Conflicting interests in Curacao insolvency law (part 6)

Conflicting interests of different bankruptcy estates: The management of different but associated bankruptcy estates can be entrusted to one and the same person who therefore is appointed several times as receiver. In this connection group relationships come to mind. It is true that in connection with different estates with one and the same person as receiver, companies not affiliated in a group also come to mind, but this will probably not often occur. Regularly, (members of) groups go bankrupt (for instance RSV, OGEM, DAF, Fokker, Infotheek Groep, Bredero, Text Lite, Mediasafe, Medicopharma, Palthe, Verto, Wyers, HCS, UPC, Van der Moolen, Lehman Brothers, Econcern, Kroymans and DSB Bank come to mind). The receiver will usually wind up the bankruptcies separately but due to their interrelatedness probably as much as possible at the same time. However he has to wear multiple hats and that is sometimes difficult.

Read more Filed under: Corporate by Karel Frielink.

 

Friday, January 25, 2013

Conflicting interests in Curacao insolvency law (part 5)

Different types of interests: A receiver cannot escape the weighing of interests. Such a weighing should be verifiable. The line of thought followed by the receiver should be clear. Particularly because, apart from his liability and remuneration, these being of a different order, he has no self-interest in the winding-up of the bankrupt estate, the receiver is the obvious person to weigh the interests. If required he can and will himself be assisted by an expert. In connection with bigger bankruptcies or when a business is continued, it is for instance sensible also to appoint as receivers one or more registered accountants or business consultants. This expertise is so vital in managing and winding up such bankruptcies that I prefer these experts to be appointed as receivers and not merely to be engaged as advisors. They are then necessarily involved in the decision-making process and are also co-responsible for this. This also fits in with my starting point that bankruptcies are not covered by the exclusive domain of advocates. In addition, they will, as I presume, usually work as receivers for a lower hourly rate than as an advisor.

Read more Filed under: Corporate by Karel Frielink.

 

Wednesday, January 23, 2013

Corporate Governance and Directors’ Duties: Curacao

A Q&A guide to corporate governance law in Curacao by Maike Bergervoet and Karel Frielink. The Q&A gives a high level overview of board composition, the comply or explain approach, management rules and authority, directors’ duties and liabilities, transactions with directors and conflicts, company meetings, internal controls, accounts and audit, institutional investors and reform proposals.

Read more Filed under: Corporate by Karel Frielink.

 

Tuesday, January 22, 2013

Government-owned companies: ensuring good corporate governance in Curacao

This article discusses the corporate governance provisions in Curacao for government-owned companies, analysing both the internationally applicable regulations provided by the OECD in their Guidelines on Corporate Governance of State-owned Enterprises, and the domestic provisions laid down in the National Ordinance, the Corporate Governance Code and the Model Articles of Association.

Read more Filed under: Corporate by Karel Frielink.

 

Monday, January 21, 2013

Conflicting interests in Curacao insolvency law (part 4)

The receiver and personal interests: The duties of the receiver are to represent the interests of others. When his personal interests are affected he must observe extreme restraint and openness. If there is a conflict of interest or if a semblance of it has been created, he ought to withdraw as the receiver. The receiver is not allowed to sell goods forming part of the estate to himself, even if this would have been allowed by the supervisory judge (direct conflicting interest). Even bidding in a public auction he has organized is in my opinion not compatible with the independence with which a receiver ought to operate.

Read more Filed under: Corporate by Karel Frielink.

 

Thursday, January 17, 2013

Conflicting interests in Curacao insolvency law (part 3)

Conflicting interests of the receiver/advocate and his law firm: A receiver must be able to take decisions freely and be able to weigh the interests involved in a bankruptcy against each other in an objective and unbiased manner. Before accepting an appointment as receiver, the respective person must make certain that he is free to act as such. If he had been the advocate (lawyer, attorney) of the bankrupt or of his shareholder or managing director before the bankruptcy order, despite his qualities he is presumed to be unable to act as such, at any rate any semblance of bias must be avoided. The same applies when he is on friendly terms with these persons.

Read more Filed under: Corporate by Karel Frielink.

 

Monday, January 14, 2013

Conflicting interests in Curacao insolvency law (part 2)

The special characteristics of the duty of a receiver bring with them that his liability, if any, must be assessed against a standard of due care which has been tuned to this. This standard boils down to the fact that a receiver ought to act as can reasonably be required of a receiver having sufficient insight and experience and performing his duties conscientiously and with dedication. Knowledge and experience exceeding the minimum requirements can to a certain extent color the standard in a concrete case: after all there is nothing against taking as a starting point a receiver with the same knowledge and experience as the party sued. In assessing the receiver’s acts a distinction must be made between compliance with strict legal and contractual obligations and those matters in which the receiver has a certain discretionary scope. In the latter case a certain restraint must be observed by the court having to judge the case and the court’s assessment could be indicated as a limited review.

Read more Filed under: Corporate by Karel Frielink.

 

Friday, January 11, 2013

Conflicting interests in Curacao insolvency law (part 1)

The receiver (trustee in bankruptcy) is sometimes described as an octopus. The receiver as an octopus: this means that in connection with each appointment he is in a way thrown in at the deep end because he has to make himself familiar with the relevant issues in a very short period and because of the number of interests involved in a bankruptcy and these being partly contradictory he often needs eight arms in order to cope with all the requirements and demands. One could just as well describe the receiver as a jack-of-all trades.

Read more Filed under: Corporate by Karel Frielink.

 

Monday, January 07, 2013

Civil proceedings in Curacao

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.

Read more Filed under: Dispute Resolution by Karel Frielink.