Curaçao Table of Statutes
When the Netherland
Antilles were dissolved in October, 2010, the
pre-existing Antilles laws and regulations were
adopted in their entirety by Curaçao
and Sint Maarten. To reflect the new constitutional
order, references were changed accordingly.
This
is a non-exhaustive list of the main Curaçao
statutes affecting offshore and non-resident
business. The statutes are listed in alphabetical
order – click on the statute for a fuller
description of the statute, the legal regime
it forms part of, or in some cases the text
of the law.
Civil
Code Book 2 (Corporate Law) 2004
Decree on Pensions 2003
The Commercial Code of the Netherlands Antilles
(Articles 33 - 155)
National Ordinance for Identification When Rendering
Financial Services 1997
National Ordinance for Insurance Supervision
1990
National Ordinance on Penalization of Money
Laundering 1993
National Ordinance on Profit Tax 1940
National Ordinance for the Reporting of Unusual
Transactions 1996
National Ordinance
on Ship Registration Tax 1987
National Ordinance on
the Supervision of Banking and Credit Institutions
1994
On
December 29th, 1999, the Parliament of the Netherlands
Antilles passed new tax legislation known as
The New Fiscal Framework intended to improve
the jurisdiction's image as an Offshore Financial
Centre and to revitalise its financial services
industry. The legislation, which came into force
on 1st January 2002, removed the distinction
between 'onshore' and 'offshore' companies,
simplified tax rates, and introduced a withholding
tax. Alongside the tax legislation, a new corporate
form was introduced to allow offshore operations
on a tax-exempt basis: this is the NABV (Netherlands
Antilles Besloten Vennootschap), and it has
supplanted the offshore NV for many purposes
(see Offshore Legal and
Tax Regimes and Forms
of Company).
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Curaçao Banking Law
Banks and other
financial institutions in Curaçao are
governed under the National Ordinance for the
Supervision of Banking and Credit Institutions
1994. The supervisory authority is the Central
Bank of Curaçao and Sint Maarten (CBCS,
the central bank); (formerly known as Bank of
the Netherlands Antilles (BNA, the central bank));
any legal entity involved in financing or providing
funds or credit facilities must obtain a licence
from the CBCS.
There is an exception
to the requirement to obtain a licence for 'Concern-Financing
Corporations', sometimes called 'CFCs' and not
to be confused with 'Controlled Foreign Corporations'
in the legislation of many high-tax countries.
These CFCs are subsidiaries or affiliates of
international groups, and such a company is
exempt from licensing if:
- it
receives at least 90% of its funding from
the group, and any bearer bonds it issues
are limited to institutional investors; or
- its
loans are only to group companies, and the
parent company of the group has provided a
guarantee to the central bank to cover its
external borrowing.
Offshore
banks will fall under the heading of 'International
Credit Institutions': they acquire their funds
from foreign sources and lend to non-residents.
The application to the BNA for a license includes
the following information:
- the
Memorandum and Articles of Incorporation (or
the Statutes);
- the
names and antecedents of the key shareholders,
managers or beneficial owners;
- the
last 3 years' annual reports and accounts,
issued by a certified accountant and without
qualification;
- a
business plan and details of proposed operations;
- details
of the proposed financial controls and accounting
arrangements;
- details
of corporate structure.
There
is no legislation on banking secrecy as such,
although breaches of a confidential relationship
can be the subject of prosecutions under the
Criminal Code. Curaçao has mutual assistance
agreements with a number of other states and
has been included in the OECD 'white list' of
countries since September, 2009.
There
are several pieces of legislation dealing with
money laundering, and specifically targeted
at drug-related money:
- The
National Ordinance on Penalization of Money
Laundering 1993 provides severe criminal penalties
for the laundering of money derived from criminal
activity;
- The
National Ordinance for the reporting of Unusual
Transactions 1996 imposes criminal penalties
on financial service providers who fail to
report 'unusual' transactions; and
- The
National Ordinance for Identification when
Rendering Financial Services imposes criminal
penalties on financial service providers who
do not apply 'know your customer' rules to
their clients.
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Curaçao Insurance Law
The Curaçao
insurance sector is regulated by the Bank of
Curaçao and Sint Maarten (central bank)
under the National Ordinance for Insurance Supervision
1990. See Offshore
Legal and Tax Regimes for further details
of the taxation of offshore insurance companies.
The
central bank distinguishes between domestic
insurers (which may be life or non-life insurance
companies) and international, ie offshore, insurers,
who may be captive insurers or reinsurance companies.
Foreign companies can qualify as local insurers
but will be subject to local supervision on
the same basis as a local company. According
to the Ordinance, an insurance company must
be a locally-incorporated limited liability
company (NV) with registered shares, or can
be a mutual insurance company. The bank has
power to grant exemption from this rule for
branch offices of foreign companies.
The
minimum authorised capitalisation of an insurance
company is ANG200,000 (at the time of writing)
but in practice capitalisation will depend on
the business plan as disclosed to the bank during
the licensing process, and in particular on
the applicable solvency margin according to
the following rules:
- For
life insurance, 4% of the total of actuarial
provisions at the end of the previous financial
year after deduction of re-insured provisions,
but not less than $225,000.
- For
non-life insurance, 15% of the premium income
in the previous financial year, after deduction
of re-insured premiums during the year,
but not less than $170,000'
- For
reinsurance, 10% of the premium income in
the previous financial year, after deduction
of retrocession premiums, but not less than
$557,000.
Management
of insurance operations (Antillean or foreign)
must be carried out in the jurisdiction by at
least one individual approved by the Central
Bank as having adequate skills; books and records
must be maintained in the jurisdiction.
In
May, 2011, the Central Bank issued Provisions
and Guidelines on the Detection and Deterrence
of Money Laundering and Terrorist Financing
for Insurance Companies and Intermediaries (Insurance
Brokers) which sets out indicators of mandatory
reporting conditions for the issuance of life
insurance policies. These include payments of
cash premium of more than NAF100,000. Single
premium payments of NAF25,000 or more must also
be reported if the policyholder is not resident
in Curaçao, the policyholder does not
state a fixed address and the term of the policy
is for three years or less.
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