http://batibleki.visitaruba.com/2009/02/24/fund-raising-happy-jump-hour-with-le-grove/
Filed under: Uncategorized
February 20, 2009 • 11:17 am 0
Gomez & Bikker to represent local depositors in Stanford International Bank Limited matter
Gomez & Bikker www.gobiklaw.com to represent depositors from Aruba and the Netherlands Antilles in the Stanford International Bank Limited matter http://www.stanfordinternationalbank.com/contactus.cfm. This matter will be handled in combination with Antiguan law form Roberts & Co. http://www.lawyers.com/roberts&co
For more information contact: lincoln@gobiklaw.com and maritza@gobiklaw.com or http://stanfordfinancialreceivership.com/
Filed under: Uncategorized
February 9, 2009 • 10:33 am 0
Court of Aruba declares agreement with U.S.-based aviation registration service provider null and void.
By judgment of the Court of First Instance of Aruba dated February 14th, 2007 in the matter of the State of Aruba vs International Air Safety Office Inc. d.b.a. “The Aruba Registry” (“IASO”). IASO had an agreement with the State of Aruba dated November 27th, 1995 with two options to renew for 5 years. By letter of the minister of Transport dated November 21st, 2003 IASO was informed that the agreement was in conflict with Aruba law and therefore null and void. In the matter the court ruled that the agreement was null and void because it was in conflict with local law, specifically with the laws governing the public finances of the State of Aruba, which prohibits any minister to execute any commercial agreement with duration longer than 5 years. The court issued a declaratory judgment stating that the agreement was null and void and at the request of the State limited the nullity of the agreement through November 21st, 2003, not to jeopardize interest of third parties. This judgment was appealed by IASO but IASO later withdrew the appeal. The judgment of February 14th, 2007 is now irreversible. The judgement is consitent with opinions issued on the subject matter by Gomez & Bikker www.gobiklaw.com. The contact information for the Department of Civil Aviation of Aruba i.e. the authority in charge of managing the registration of aircrafts in Aruba is:
Department of Civil Aviation of Aruba
Mr. Jozef A. Maduro, director
Sabana Berde 73-B
Oranjestad, Aruba
Phone: +297.583.2665
Fax : +297.582.3038
Email: dca@aruba.gov.aw
AFTN : TNCAYAYX
The Department of Civil Aviation of Aruba is a public office and an equal opportunity service provider and does not grant exclusive right to any party for (registration) services rendered. Any claims or references to the contrary are inaccurate. In my professional opinion the use of the d.b.a. “The Aruba Registry” by a(ny) private third party, including IASO, is questionable as it may create the impression that IASO is a public registry maintained by the State of Aruba, which is not the case. IASO is not a government agency, but according to its website, an independent service provider.
Translation Judgment no. 154 of 14 February 2007
[original copy]
Judgment no. [handwritten: 154] of 14 February 2007
Belonging to A.R. no. 1647 of 2004
COURT IN THE FIRST INSTANCE OF ARUBA
JUDGMENT
in the matter of:
the legal entity under public law HET LAND ARUBA, at Aruba,
PLAINTIFF IN THE MAIN ACTION, DEFENDANT IN THE COUNTERCLAIM,
hereinafter also referred to as: ‘Het Land’,
authorised representative: lawyer P.R.C. Brown,
versus
the company under the law of the Marshall Islands
INTERNATIONAL AIR SAFETY OFFICE INC
having chosen domicile at Aruba,
DEFENDANT IN THE MAIN ACTION, PLAINTIFF IN THE COUNTERCLAIM,
hereinafter also referred to as: ‘IASO’,
authorised representative: lawyer J.P. Sjiem Fat.
1. THE PROCEEDINGS IN THE MAIN ACTION AND THE COUNTERCLAIM
The course of the proceedings is apparent from:
- the application submitted to the court registry;
- the statement of defence (conclusie van antwoord in conventie) in the main action, also claim in the counterclaim (conclusie van eis in reconventie);
- the reply in the original action (conclusie van repliek in conventie), also reply to the counterclaim (conclusie van antwoord in reconventie);
- rejoinder in the original action (conclusie van dupliek in conventie), also reply to the rejoinder (conclusie van repliek in reconventie);
- the document commenting on exhibits in the main action, also statement of rejoinder in the counterclaim (conclusie van dupliek in reconventie).
At the request of parties the matter has been deferred in connection with negotiations on a settlement until Het Land put a request to render judgment as yet.
2. FACTS ESTABLISHED IN THE MAIN ACTION AND IN THE COUNTERCLAIM
2.1 On 27 November 1995 IASO and Het Land concluded a partnership agreement (a copy of which has been submitted as exhibit I to the claim) to induce airplane owners and operators to have their airplanes registered in Aruba. The then Minister of Transport acted on behalf of Het Land.
2.2 With the agreement IASO acquired the exclusive right to act as – unpaid – intermediary in registering the airplanes. It had to collect the charges due by the owners/operators and pay these to Het Land and in doing so was allowed to stipulate a fee for itself from these owners/operators.
2.3 The agreement was entered into for a period of five years from 27 November 1995 with a right of option for IASO on ‘an additional two (2) option periods of five (5) years to renew this agreement.’ In order to exercise this right, IASO did not have to do anything: the agreement would be renewed, unless IASO informed (the government of) Het Land in writing at least one year prior to the end of the current period that is would not make use of this option. IASO did not send any such message.
2.3 Article 22 of the Government Accounts Decree as it read at the time of entering into the agreement, hereinafter: the GAD (1989), entails the following:
1. Unless otherwise stated by or pursuant to the National Enactment, legal acts pertaining to private law are performed on behalf of Het Land by the minister involved, pursuant to a general or special power of attorney on behalf of it.
2. Agreements can only be entered into for a period not exceeding five years.
3. …
Article 31 GAD (1989) reads:
The validity of a legal act pertaining to private law will only be affected as regards the competence of the person acting on behalf of Het Land, if Article 22 has not been observed.
2.4 By letter of 21 November 2003 the minister of Tourism and Transport wrote to IASO relating the agreement in hand:
This renewed contract is in conflict with the law, more specifically it is against article 22 of the … (Government Accounts Decree 1989), which states that no contract with the Government can be entered into force for a period longer than five years. Because of this, the Government can annul the Agreement Notice of … (“vernietiging”) of the Agreement is hereby given. As a consequence, the Agreement shall be deemed not to have existed between parties.
2.5 By judgment in interlocutory proceedings of 28 April 2004 Het Land, at the request of IASO, was ordered to fulfil the agreement in full.
3. THE POSITIONS OF PARTIES IN THE MAIN ACTION AND IN THE COUNTERCLAIM
3.1 In the main action Het Land claims primarily that the court will rule by provisionally enforceable judgment that the agreement has been annulled effective from 21 November 2003, ordering IASO to pay the costs of the proceedings.
3.2 The defence in the main action proposes to reject the claim, with costs to be determined by the court.
3.3 In the counterclaim IASO claims that the court order Het Land by provisionally enforceable judgment to fulfil the agreement in full on pain of a penalty, at any rate, from the moment this registration is no longer possible by law, to order Het Land to compensate IASO for the costs suffered by IASO, with costs to be determined by the court.
3.4 In the counterclaim Het Land puts up a defence, being that the court declare IASO inadmissible in its claims or to dismiss these claims, ordering IASO to pay the costs of the proceedings.
4. ASSESSMENT IN THE MAIN ACTION AND IN THE COUNTERCLAIM
4.1 The court construes Het Land’s claim in the sense that Het Land wishes to limit the consequences of the annulment invoked on 21 November 2003 to the period after this date. The court arrives at this interpretation of the words ‘effective from’ in the statement requested because a separate defence of Het Land against IASO’s request to apply Section 3:53 paragraph 2 Dutch Civil Code, has not been put up: apparently in Het Land’s opinion this request bears no relationship to its claim which it incidentally held on to also after IASO’s request.
4.2 The starting point is the text of the Government Accounts Decree 1989, as applicable at the time of entering into the agreement. Pursuant to article 22 paragraph 1 GAD (1989) the then Minister of Transport and Communication was in principle allowed to conclude an agreement of such a nature, but because this agreement was to remain in force for a period of fifteen years, the minister was only allowed to conclude this agreement pursuant to a special competence vested by national enactment – which national enactment is lacking. IASO’s argument that the agreement has only been entered into for a period of five years, therefore fails at any rate in so far as it concerns the declaration of intention of Het Land, now that the minister on behalf of Het Land has assented to the two renewals provided therein, which take place irrespective of the question whether Het Land at the moment of these renewals still wanted this: the minister therefore has given the assent of Het Land for a period of fifteen years. The minister could not derive the competence to do this from the fact asserted by IASO and contested by Het Land, that Het Land frequently concluded agreements with a duration of more than five years, either. If there is or has been any such a custom among ministers, the mere fact of there lacking a basis for such in a national enactment, cannot repair the lack of competence. IASO, incidentally, gives a wrong example in this context: Het Land can cancel the lease agreement with Santa Fe submitted as exhibit BB to the statement of defence/claim, which makes its nature, in the light of the purport of article 22 paragraph 2 GAD (1989), of a different order.
4.3 IASO’s argument that the agreement concluded with IASO is not in violation of article 22 paragraph 2 GAD (1989) because this article only serves to withhold agreements from the authority of representation of the ministers, by which ‘immediate financial commitments’ are imposed on Het Land, must also be rejected. Page 43 of the explanatory memorandum (exhibit K to the defence/claim) refers in this context to agreements with respect to which Het Land could ‘experience financial consequences’ for a longer period of time. Now that it is an established fact that Het Land as a result of the registrations of airplanes becomes obliged to perform safety inspections or have such inspections performed and Het Land under these circumstances can also be held liable for certain technical defects to the airplanes, there is no reason to assume in reasonableness that article 22 paragraph 2 GAD (1989) despite its phrasing, does not imply that the requirement that its duration is a maximum of five years, is to be set to agreements such as the one in hand.
4.4 Article 22 paragraph 2 GAD (1989) – exclusively – offers Het Land protection against commitments the term of which is too long. Also in view of Section 3:40 paragraph 2 Dutch Civil Code, which has meanwhile entered into force, that pursuant to the provision laid down in Section 2, or – if it is to be assumed that the purpose of article 31 GAD (1989) serves to make the agreements entered into by a person incompetent to do so on behalf of Het Land null and void – Section 6 paragraph 2 of the transitional provisions New Dutch Civil Code, the agreement was annullable in 2003. On 21 November 2003 Het Land was therefore in principle entitled, if desired out of court, to make use of its right to annul the agreement.
4.5 IASO contends that in this case, an exception is to be made to this principle because by annulling the agreement Het Land acted unreasonably, also because by doing so it acted contrary to various legal principles of sound administration. This concerns an appeal to misuse of Het Land’s right to claim annulment.
4.6 IASO, which in this context has an obligation to furnish facts, insufficiently explained its assertion that Het Land had created expectations with IASO that the minister was entitled to sign. As also shown by § 7 of IASO’s statement of defence at the time of the consultations both parties were aware of the five-year period of article 22 paragraph 2 GAD (1989) and in particular with a view to this they have opted for a ‘construction’ of renewals. In his advice of 6 November 1995 (exhibit B to the defence/claim), CBJAZ has advised the minister, which advice the minster let IASO read before the agreement was concluded, to stipulate a possibility for Het Land to cancel the agreement because of the undesirably long duration of it. In reasonableness IASO was not to expect that everything was in order as far as the authority of representation of the Minster of Transport and Communication was concerned. At no instance were any other circumstances, based on which it could have such an expectation, put forward or have such circumstances become manifest. For this reason the court dismisses the appeal to breach of the trust allegedly raised by Het Land.
4.7 Nor did IASO sufficiently explain that it has been disadvantaged because Het Land only invoked the nullity of the agreement after eight years (and not earlier). For apparently Het Land’s claim does not serve for the consequences of the annulment to have retroactive effect, so that Het Land’s lack of action in this respect, which lack of action without additional facts or circumstances cannot support the appeal to forfeiture of rights, can only have benefitted IASO. No special meaning can be attached to the fact that Het Land was the only party that could have invoked the annulment of the agreement. This inequality is inherent to the nature of the defect clinging to the agreement in hand. The present legislator incidentally has created some form of compensation for the inequality at issue here by way of Section 3:55 paragraph 2 Dutch Civil Code.
4.8 IASO in this context also invokes that it suffers damage as a result of the annulment. Although it is likely that it will lose out on income as a result, it has insufficiently explained the extent of this damage. For example, in exhibit E to the defence/claim it failed to state its income received up to and including 2003, and so it did not comment on whether it has been able to earn back the investments it had made. Therefore, as a result of this failure any weighing up of the financial consequences of the annulment can only be partly made.
4.9 Against IASO’s interest in continuing the partnership, there are the interests of Het Land in terminating these. According to § 35 of the reply in the original action, Het Land not only invokes, in the context of its appeal to Section 6:258 Dutch Civil Code but also in the context of the weighing up of interests covered in Section 3:13 Dutch Civil Code, the international political changes that took place after 1995 which followed the attacks of 11 September 2001 among other things. These changes are relevant indeed, because in 2003 stricter requirements than before were set to the supervision of the security of the airplanes registered in Aruba. For Het Land remains responsible for this supervision and it can be held liable for this. Even if the generally prevailing opinion is that the occurrence of such changes should be for the account of Het Land, Het Land may consider these changes in its decision to invoke the annulment of the agreement. The mere (international-political) interest of Het Land, as referred to, in termination of the partnership with IASO, stands in the way of Het Land in reasonableness not being able to exercise its competence to do so. The other interests which Het Land invoked in this context therefore need not be assessed.
4.10 IASO’s request for application of Section 3:53 paragraph 2 Dutch Civil Code is based on the argument that the consequences of the agreement can only be undone with great difficulty. However Het Land does not wish to attach any retroactive force to the annulment, and so to this extent IASO does not suffer any nuisance from this. For the period from the agreement being declared annulled on 21 November 2003 the partnership was apparently continued, but this happened under IASO’s duress, which had even obtained an interlocutory order for this – as turns out now, wrongfully so. The court therefore dismisses IASO’s request in so far as it involves the period after 21 November 2003.
4.11 The conclusion is that the agreement was annulled in a legally valid way. This makes Het Land’s primary claim in the main action well-founded. The phrasing of it was later adjusted for reasons of clarity, to explain that the consequences of the annulment have no retroactive effect. IASO’s claims in the counterclaim are unfounded, now that the agreement has been annulled, and should be dismissed.
IASO is ordered to pay the costs of the proceedings because it is declared to be at fault.
JUDGMENT IN THE MAIN ACTION AND IN THE COUNTERCLAIM
The court, giving judgment
in the main action:
declares it to be the law that the agreement of 27 November 1995 concluded between parties was annulled, on the understanding that the consequences of this agreement will remain in force in so far as these had already been effected on 21 November 2003.
orders IASO to pay the costs of the proceedings in the main action, which costs on the side of Het Land are until this day estimated at AFL 450.00 for the court registry fee, AFL 147.00 for service of a writ and AFL 2,250.00 for the authorised representative’s fee.
declares this judgment provisionally enforceable.
in the counterclaim
dismisses the claims
orders IASO to pay the costs of the proceedings in the counterclaim, which costs on the side of Het Land are until this day estimated at AFL 1,125.00 for the authorised representative’s fee.
This judgement was rendered by H.E. de Boer, judge, and was pronounced at the public hearing of Wednesday 14 February 2007 in the presence of the clerk of the court.
[signature: illegible] [signature: illegible]
Filed under: aviation news
