Dear Editor,
Going through two elections within a mere seventeen months and emerging from that experience as the third highest vote-getter with 580 votes qualified me to become a Member of the Parliament of St. Maarten. But what does that mean? I was soon to find out after the swearing-in ceremony which took place on Easter Monday, April 2, 2018. Cramped together in a hall at the Governor’s Office, the fifteen elected parliamentarians listened to the wise counsel offered by His Excellency, the Governor, prior to him administering the oath of office. Unfortunately, due to limited space, each parliamentarian was only allowed to invite two persons to attend the ceremony.
Initially, the first public meeting of Parliament was scheduled to be held two hours after the swearing-in ceremony. In this meeting, the Chair and Vice-chair of Parliament were to be appointed and the newly-sworn-in MPs would have had the opportunity to give their maiden speeches. Unfortunately, because the parliamentary coalition had not yet been formalized, this meeting was cancelled.
On Tuesday, April 3, through Monday, April 11, a series of orientation meetings was organized for all MPs. The newcomers in Parliament plus just a couple of senior parliamentarians faithfully attended the orientation sessions which were conducted by Dr. Luciano Milliard, professor of constitutional law at the University of Aruba. In the sessions, he dealt with the three basic laws generally used by parliamentarians, namely the Constitution of St. Maarten, the Kingdom Charter and the Rules of Order of Parliament. In addition, Professor Milliard discussed with us how a law comes into being: from an idea, to an initiative or draft law, to a law that is passed by Parliament. It was also interesting to be part of a mock parliamentary meeting. New to the orientation this year was a full day’s session on ceremonial protocol which ended with an official dinner where the protocols of official dining were demonstrated and explained.
After the orientation session, I came face to face with the actual workings of Parliament. I experienced my first faction leaders meetings. These meetings are called by the President of Parliament to discuss matters that affect the political parties, such as the Regulation for Faction Workers. Then, there are the Central Committee meetings and the plenary or public meetings of Parliament. The majority of the meetings held are meetings of the Central Committee in which matters are duly debated and where members exchange ideas and make proposals.
In the last Central Committee meeting held May 15, 2018, concerning two draft laws, one pertaining to an amendment to the 2017 budget and the other to the automatic exchange of tax and financial information between countries, I raised a series of questions and made several comments regarding these two laws. At the end of the meeting the Minister of Finance said to me, “I am getting more blows (questions) from the coalition partner than from the opposition.” I said to him, “Please do not take it personal. I am just doing my job!”
When the discussion in the Central Committee meeting has been sufficiently exhausted, the President of Parliament then submits the issue to a public meeting of Parliament for final handling. In the public meeting, Parliamentarians can approve, reject or defer the issue to another meeting.
You might have also noticed the difference in decorum between a Central Committee meeting and a public meeting of Parliament? During Central Committee meetings, deliberation is more informal and MPs are not required to stand when speaking. They simply raise their hands and receive acknowledgment from the Chair. The public meeting on the other hand is much more formal. MPs are required to sign the speakers’ list if they wish to address any one of the topics on the agenda. Furthermore, the duration of the speaking time is fixed and MPs are required to stand as they address the Chair. During my brief time in office, I experienced both meetings. For me the preparation for the Central Committee meeting is more tedious and thorough. Once the research is done for the Central Committee meeting it is then far easier to prepare oneself for the public meeting.
My first public meeting was the budget meeting in which I presented the motion to reduce the salaries of MPs by 15 per cent. I am pleased that I was able to deliver on SMCP’s campaign promise. Unfortunately, the motion was not debated during the budget meeting but was deferred to a subsequent meeting so that it can be included in the cost-cutting measures that still have to be approved by the Council of Ministers. As you can imagine, the motion did not sit well with many of my colleagues in Parliament but I believe that it resonated well with the general public who are expecting their elected officials to lead by example and demonstrate their empathy and solidarity with the people who are still suffering in the aftermath of Hurricane Irma.
For a small Parliament I am amazed at the amount of reading that is required, both in English and in Dutch. Every day, a plethora of documents land in our email boxes or are uploaded to one of the drives on the Parliament’s server to which all MPs have access. In my view, Parliament is well on its way to becoming a paperless institution.
I wouldn’t want to end this article without commending the staff who work in Parliament. In my opinion, they are doing a great job! They are friendly, helpful and willing to go the extra mile to accommodate Members of Parliament or simply just to get the work done.
Wycliffe Smith
Leader of the St. Maarten Christian Party
Dear Editor,
Could someone please direct the garbage collectors to Camelia Road in Betty's Estate? We haven’t seen them for over a week now, and the rats are having a great time.
Name withheld at author's request.
Dear Editor,
St. Maarteners just have to be wise, seek for St Maarten to be a commonwealth country and stay with the currency it now has.
St Maarten can have factories doing some hotel products, even uniforms and many more.
By 2020 Parliamentarians should carefully decide how and when to put St Maarten independent.
Cuthbert Bannis
Dear Susy,
I am curious where you think your sense of entitlement comes from. You say, “Gee, we have no place to train.“ So what? Why does that suddenly give you the right to appropriate the public roads for your sport? Are you suddenly the SXM National Bike team with some sort of Government authority to do whatever you want where ever it occurs to you to do it? I doubt it.
Or maybe the guys playing soccer or cricket should just set up a pitch wherever they please on Airport Boulevard because they feel like it. Now that would be worth watching.
How about this: All you guys all dressed up in your very best wannabe Tour de France outfits hump yourself down to the Receiver’s Office and buy yourself some license plates and insurance for your bikes. Then maybe you might have a leg to stand on for your complaints. Then you might consider actually obeying the traffic laws, lines in the road, lanes, etc. It’s a novel concept, I know, but give it a shot.
In the meantime, how about just keeping your sport to yourselves and staying out of the way. You are in no position to lecture anyone. As for the rest, my plate number is V2610. Feel free to send your delegation my way any time you want and see how that works out for them. I’ll look forward to meeting them head on.
Steven Johnson
The attachment
It goes without saying that the seizure of assets belonging to PDVSA by ConocoPhillips on the Dutch Caribbean islands of Aruba, Bonaire, Curaçao and St Eustatius can have dramatic consequences, especially for Curaçao. Said seizure results from an arbitration award of 24 April 2018 issued by the ICC, the International Chamber of Commerce in Paris.
An ICC tribunal reportedly has ruled that PDVSA must pay compensation to ConocoPhillips BV, a Dutch company that is a 100% subsidiary of the American ConocoPhillips Company, resulting from the expropriation of two major oil projects undertaken by the company in Venezuela in 2007. The seizure on the Dutch Caribbean islands involves a total amount of $2,582 million.
While we are aware that seizure actions also have been taken on Aruba, Bonaire and St Eustatius, our reflections are limited to what is happening on Curaçao. On 4 May 2018, the Curaçao court of first instance granted leave to the company to provisionally seize all of PDVSA's assets located on Curaçao amounting to more than 636 million Dollars. The company has 30 days, counting from 4 May 2018, to submit a formal request for the enforcement of the arbitral award.
The obligation to recognize and enforce
The enforcement of a foreign arbitral award is based on the "Convention on the Recognition and Enforcement of Foreign Arbitral Awards" (New York, June 10, 1958). The Constitution of Curaçao assigns internal effect to treaties that apply to the country, as a result of which the enforcing court must comply with the aforementioned treaty. By virtue of this convention, Curaçao is under international obligation to recognize and enforce an arbitral award rendered in another treaty State.
Recognition and enforcement of a foreign arbitral award may be refused on seven grounds set forth in the New York Convention, which may only be invoked by the party concerned, except that an enforcing court may refuse recognition if it finds on its own motion that recognition or enforcement would be contrary to the public policy (or public) of the country in which it sits. Even if one or more of the grounds for refusing recognition would be present in this case, as a non-party Curaçao will not be in a position to invoke any of these exceptions.
However, as with any treaty, when applying the New York Convention, other relevant provisions of international law must be taken into account. This is inherent in the applicable rules of the Vienna Convention on the Law of Treaties, which reflect a codification of norms of customary international law. In a recent ruling, the Dutch Supreme Court confirmed that these rules should be take into account by Dutch courts in the process of interpreting and applying the New York Convention (decision of 24 November 2017, ECLI: NL: HR: 2017: 2992).
A grave and imminent peril
Many fear that, given the dire circumstances in which it finds itself, PDVSA will be unable to resume refining and oil transhipment in Curaçao if ConocoPhillips were to be successful in enforcing the arbitral award in Curaçao. This might fundamentally affect Curaçao’s ability to guarantee the minimum level of public services facilities.
In Curaçao, an estimated 4,000 people find direct and indirect employment due to the presence of the Isla refinery and the transhipment activities. Under normal circumstances, the refinery contributes between 16 and 20 percent to the local economy. The refinery also plays a crucial role in the energy chain of Curaçao and it forms an important source of the necessary foreign exchange to guarantee the external value of the guilder.
Add to that the real shrinkage of the economy which the country has been facing for two years, and it becomes evident that a cessation of refining and oil transhipment would be unbearable for Curaçao. As a matter of fact, it should not be ruled out that if the situation continues long enough, the parity with the US Dollar that has existed since 1978 will not be sustainable, so that the cost of living will become even more expensive for the majority of the population.
It is, therefore, not surprising that people are looking to the government for action. One of the questions that arises is whether there are legal means available to the government that would enable it to invoke the national interest in the legal dispute between PDVSA and ConocoPhillips. We believe that, from the point of view of public international law, this question can be answered in the affirmative, provided that timely and adequate action is taken.
Necessity exception
We are of the view that, given the risk of catastrophic consequences for the Curaçao economy, it may be possible for the government to invoke the state of necessity exception under the law of State responsibility for internationally wrongful acts in this case. Such necessity is deemed to exist when a situation poses a grave and imminent peril that threatens an essential interest, including a serious danger to the existence of the state itself, its political or economic survival, the maintenance of the conditions under which the essential services of the state can function, the maintenance of internal peace etc.
For the sake of clarity, we do not refer to the necessity exception under the law of treaties, also enshrined in the Vienna Convention, which concerns the validity of treaties. We are referring to the rule precluding wrongfulness under the law of international responsibility, which applies when conduct in breach of an international obligation was the only means to avert a situation that would otherwise affect a state's political or economic survival, or the maintenance of the conditions under which the essential services of the state can function.
This rule has been codified in the Articles on State Responsibility adopted by the International Law Commission of the United Nations in 2001. In other words, because disallowing the enforcement of the foreign arbitral award would not jeopardize an essential interest of another interested State party to the New York Convention, Curaçao may impede the seizure of the PDVSA assets located within its territory.
The absence of an essential interest of another interested State party to the New York Convention is illustrated by the fact that PDVSA assets amenable to seizure are available in the territory of other treaty parties, where enforcement would not have the same impact on the economy as would be the case in Curaçao. In addition, it must be borne in mind that ConocoPhillips, in parallel with the ICC arbitration, had successfully brought an arbitration case against the State of Venezuela before ICSID, the World Bank's arbitration institution.
More importantly, ConocoPhillips had already instituted proceedings before the US courts accusing the Venezuelan government of trying to evade a potential arbitration award by shifting assets owned by its state oil company out of the United States. Thus, one is left to wonder why Curacao should bear the brunt of this catastrophic seizure attempt by ConocoPhillips.
Third party opposition of the seizure
For a circumstance precluding wrongfulness to be applicable in the present case, that exception must be pleaded. It would appear that the third-party proceedings under the Curaçao Code of Civil Procedure would be the appropriate avenue for such a plea.
Third-party opposition of a seizure is a special form of resistance. It gives a third party the opportunity to challenge a proposed or commenced execution or to oppose an enforced or conservatory attachment.
In most cases, it will be a third party whose assets have been seized in relation to a claim against someone else. We believe that nothing precludes a third-party action by Curaçao itself to safeguard an essential interest of the state against the grave and imminent peril described above.
It has been reported that three Curaçao state-owned companies have instituted legal proceedings against the seizure actions of ConocoPhillips and in that context have called upon PDVSA to guarantee that it can meet its contractual obligation to supply fuel to these companies for the purpose of providing the essential public services. This duty of delivery to the public companies is deemed to be an obligation to the population of Curaçao.
It must be acknowledged, however, that if delivery is impeded by an attachment pursuant to the New York Convention, PDVSA cannot be blamed. The ball remains in the government’s court. Moreover, it remains to be seen whether a party other than the country itself can rely upon the necessity exception.
It is indeed to be expected that the competent court will only take into account the interests of the parties to the proceedings. Therefore, it is essential that Curaçao itself asserts a position as an intervening party in order to ensure that the court take into account the serious threat to the country as a whole and that it makes it clear to all parties involved that the government, if necessary, will invoke the state of necessity exception under international law if the seizure and execution actions are not abandoned.
Conclusion
Under the New York Convention, the Curaçao court has no choice but to permit the seizure of PDVSA's assets, except if PDVSA can invoke one of the grounds for non-recognition set forth in this Convention or if the court finds on its own motion that enforcement would be contrary to the public policy of Curaçao. Whereas the country itself cannot rely on any of the exceptions enumerated in the New York Convention in order to avert the imminent peril, the state of necessity exception under the law of State responsibility provides the government with an instrument to protect the essential interests of Curaçao.
In our view, due to the grave and imminent peril presented by the recognition and enforcement of the foreign arbitral award in the present circumstances, the government would be justified to invoke the state of necessity exception and impede enforcement actions targeting the PDVSA assets located in Curaçao.
Rutsel Silvestre J. Martha and Pieter H.F. Bekker
R.S.J. Martha is the principal of Lindeborg Counsellors at Law (London, UK); Professor Pieter H.F. Bekker is the Chair in International Law at the Centre for Energy, Petroleum and Mineral Law and Policy, University of Dundee (UK) and partner at CMS Law
