The Central Bank of Curaçao and Sint Maarten (the “Central Bank”) recently has shared a point of view with respect to the interpretation of the National Ordinance on the Supervision of Investment Institutions and Administrators (“NOSIIA”).
Pursuant to the Foreign Exchange Regulation Curaçao and St. Maarten (2010) (“FER”), an international company is an entity established under the laws of Curaçao with
(i) its center of economic interest overseas and/ or
(ii) one or more of its shareholders or beneficiaries being non-residents,
which has been granted a foreign exchange exemption* under the National Ordinance on Foreign Exchange Transactions (“NOFET”). Such international company qualifies as a “non-resident” under the FER.
On 1 January 2003 the NOSIIA was entered into force. The primary objective of the NOSIIA is to create a regime of supervision for investment institutions and administrators in the interest of an adequate operation of the financial markets and the position of the investors in those markets.
The NOSIIA prohibits anyone without a license from the Central Bank, from raising or obtaining pecuniary means or other property for the purpose of participation in an investment institution which has not been licensed by the Central Bank or to offer participating interests in such an investment institution in or from Curaçao and/ or St. Maarten. Based on the stipulations of the NOSIIA and the explanatory memorandum thereto it should be noted that the phrase ‘in or from Curaçao’ extends the scope of the NOSIIA to investment institutions with their (registered) office in Curaçao, irrespective of the country where the participating interests are traded, or that have their office outside Curaçao, but are active on the financial market in Curaçao.
As the prohibition under the NOSIIA is so generally formulated the NOSIIA was, until recently, interpreted in such a way that all companies incorporated under the law of Curaçao, including international companies, fall within the scope of the NOSIIA.
Opinion Central Bank
Recently the Central Bank has limited the scope of the NOSIIA by issuing a formal letter in an individual case stating that the international company does not qualify as a local resident and is not active on the market in Curaçao. Consequently, there are no investment restrictions or prohibitions under the NOSIIA for an international company to invest or participate in (foreign) investment institutions which have not been licensed by the Central Bank. There are also no restrictions or prohibitions to offer participating interests in investment institutions which have not been licensed by the Central Bank to an international company.
* An exemption from the provisions of articles 9 to 15 of the NOFET.