Legal Blog

Tuesday, July 30, 2013

Financial supervision in the BES islands

New legislation entered into force in 2012. The Netherlands Antilles dissolved on October 10, 2010. Prior to that date, the Netherlands Antilles consisted of Curaçao, St. Maarten, Bonaire, St. Eustatius, and Saba, and formed, together with the Netherlands and Aruba, the Kingdom of the Netherlands.

Read more Filed under: Finance by Karel Frielink.

 

Friday, July 26, 2013

The de facto managing director under Curacao law

A shareholder (or supervisory director or even a third party) who is not part of the management board of an NV or BV, yet for a specific period or under certain circumstances, whether or not pursuant to a provision either in the articles of association or in Book 2 of the Curaçao Civil Code (CCC), determines or co-determines the policy of the NV or BV as if he were a managing director, shall with regard to such conduct, insofar as his obligations as regards the corporation and third parties are concerned, be considered a managing director (Section 2:138 CCC). 

Read more Filed under: Corporate by Karel Frielink.

 

Tuesday, July 23, 2013

No derivative action in Curacao

Curaçao law does not provide for a derivative action. According to Section 2:3 subsection 1 of the Curaçao Civil Code, for the purposes of patrimonial law (i.e. the law of property, rights and interests and the law of obligations) a legal person (e.g. an NV or BB) is equated with a natural person, except where this would be contrary to the law. 

Read more Filed under: Corporate by Karel Frielink.

 

Friday, July 19, 2013

Tort and Curacao private international law

Under Curaçao rules of private international law, a claim arising from an unlawful act is governed, in the absence of a choice of jurisdiction by the parties, by the law of the country were the unlawful act was committed (lex loci delicti). However, this rule may possibly not apply if the tortfeasor and the injured party are both residing in a country other than that where the unlawful act was committed and if the legal effects occur entirely in the other country. This is the so-called legal effects doctrine. In such  cases the question of whether the act committed was unlawful, but also other elements such as the causal link between the act and the injury, (extent of the) damages, circle of liability etc. may possibly also be governed by the legal effects doctrine.

Read more Filed under: Commercial by Karel Frielink.

 

Tuesday, July 16, 2013

Declaring dividends in Curacao

Directly connected to the approval of annual accounts, the general meeting of the NV (or BV, as the case may be) or any other body designated in the articles of incorporation, shall resolve the distribution or reservation of profits according to aforementioned annual accounts and the payment of any other distributions flowing from the equity capital as apparent from the annual accounts. The general meeting, or any other body designated in the articles, may resolve to pay interim distributions for the account of the current financial year or for the account of a closed financial year for which the annual accounts have not yet been approved.

Read more Filed under: Corporate by Karel Frielink.

 

Friday, July 12, 2013

Agency agreements in Curacao

Under the Civil Code of Curaçao (Section 7:428), an agency agreement is defined as a contract for a fixed or indefinite period of time between a principal and an agent, whereby the agent agrees, against payment, to mediate in the conclusion of contracts and to eventually conclude these contracts in the name and for the account of the principal, without being subordinate to the principal. 

Read more Filed under: Commercial by Karel Frielink.

 

Tuesday, July 09, 2013

Curacao corporate law in pressing circumstances

According to Section 2:7 subsection 2 of the Curaçao Civil Code, any rule imposed, for instance, on board members or shareholders of a limited liability company, will not be deemed to apply, to the extent, in the given circumstances, that these would be unacceptable in terms of reasonableness and fairness.

Read more Filed under: Corporate by Karel Frielink.

 

Thursday, July 04, 2013

Breach of contract in the Dutch Caribbean (V)

With regards to damages, the aim thereof is generally to restore the creditor to the position he would have been in had the contract been fulfilled. In case of breach of contract, the damages will usually be assessed by considering the situation the creditor would be in if restored to the position he would have been in had the contract been performed properly, by looking at costs incurred, wasted expenditure, any loss of profits etc. 

Read more Filed under: Commercial by Karel Frielink.

 

Monday, July 01, 2013

Breach of contract in the Dutch Caribbean (IV)

Whenever a party to a contract is faced with non–performance by the other party, the party’s first reaction might well be to suspend its part of the contract. In the legal sense of the word, suspending or withholding performance may be described as both a defense and a self help remedy, which a party can use when the other party does not perform its obligations under the contract. By its very nature it is a temporary remedy. As long as one party is in breach and the other is withholding its performance, the contract may be said to exist in a state of suspended animation. 

Read more Filed under: Commercial by Karel Frielink.