Posted on February 10, 2021 Tue by Ministry of Justice
The last major revision of the National Ordinance Book 2 of the Civil Code (National Ordinance) dates from 2012. Since then, the Permanent Committee on Company Law has been working on an update and improving the errors and bottlenecks identified by practice.
The changes are partly prompted by the international regulations for combating money laundering and terrorist financing (OECD and FATFA), which are of great importance to Curaçao. One aspect of this is that shareholders must be traceable, which made it necessary, for example, to abolish bearer shares.
In the context of the principle of concordance, the National Ordinance has also been partly brought into line with Dutch legislation.
A similar content of the Curaçao National Ordinance Book 2, including these changes, has now been introduced in Sint Maarten. For Curaçao, the changes came into effect on January 1, 2021.
1. Liability of supervisory directors
It has now been clarified in the National Ordinance that supervisory directors and supervisors of legal persons can be held liable on the same basis as directors. In case law this was already a foregone conclusion and it has now been laid down in law. This means that in case of improper performance of their duties, they can be held liable for the damage, if they can be seriously blamed for this. In Article 19, Articles 9, 14 and 16 are declared to apply mutatis mutandis.
2. Private Fund Foundation (SPF)
The board of an SPF records the details of the beneficiaries in a register: names, addresses and their due (Article 50a). The national authorities can request insight into this register. Failure to comply with this obligation is punishable by imprisonment of up to three months or a fine of the second category.
3. Bearer shares
A holder of bearer shares in an NV can no longer exercise the rights to that share (dividend and voting rights) as long as he has not converted the bearer shares into registered shares. Exchange is effected by entry in the shareholders’ register and against the issue of share certificates (art. 1-5 Transitional provisions).
4. Definition of persons entitled to attend meetings
In article 129/239 paragraph 2, directors and supervisory directors are no longer mentioned among those who have a legal meeting right. In practice, this caused problems in decision-making outside a meeting. The previous National Ordinance stipulated that decision-making outside a meeting was possible if all persons entitled to attend meetings agreed to this manner of decision-making (article 135/235). As a result, directors or supervisory directors could block decision-making outside a meeting, for example in the event of a conflict with the shareholders. This was especially the case with investment funds with shareholders outside of Curaçao. Incidentally, this does not exclude directors and supervisory directors from participating in the meeting, because they have the right to cast an advisory vote on the basis of the National Ordinance.
5. Adjustments to the right of inquiry
The regulation of the right of inquiry has been adjusted on a number of points to the changes that were implemented in the Dutch right of inquiry in 2013:
- What is new is that the legal person can request an investigation from the Joint Court and also make provisions for itself. The request is then submitted by the management board or the supervisory board (‘self-inquiry’).
- Another new feature is that the bankruptcy trustee can submit an inquiry request.
- With this National Ordinance, the supervisory judge has been introduced. The Common Court can designate one of the counselors who has the task of facilitating the more practical aspects of the investigation and, if necessary, making decisions with regard to the practical aspects.
- The researcher appointed by the Common Court now has better protection. In principle, he is not liable for the research he carries out. If he is nevertheless held liable, the costs of defense (attorney fees) will be reimbursed by the investigated legal entity.