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
Dear Editor,
By now anyone who follows what has been happening in our politics should know that there is no love lost between the Dutch and Theo. It is a while now since Theo Heyliger was appointed formateur after the last election and it is taking a while to form the government. Screening is being used as the hold-up.
The Prime Minister of the Kingdom decided to come to St. Maarten, that is when I started speculating and I decided the Dutch Prime Minister is not telling us the real reason why he came to St. Maarten. Not the reason we read in the paper, but the real reason which was conveyed to our Ministers. Because unless my understanding of the English language is far below average I do not think what i read was pleasant news.
I believe that Theo Heyliger being the formateur and the delay in forming the government provoked a face-to-face confrontation and not the visit to the senior citizens. We were told for a wihile now that money from the World Bank is forthcoming, and I thought that the Prime Minister was doing what politicians do, show up on such occasions, but everything is hush-hush. Hence my concern.
My other observation or rather question is what is the story on the screening? What happened to nominating the Ministers first and then screening them after? Would not that help to minimize chance-takers? I believe that the possibility of being embarrassed would also be a motivation for parties to put qualified people on their lists. Taking a chance and then being rejected is going to automatically delay the process because a new candidate has to be submitted with the possibility of also being rejected.
While we are on this topic, can I request of you to publish the oath that ministers of government and members of Parliament swear to. The intention for this request is in order that the vast majority of the people on St. Maarten (your readers), who I am sure do not have a copy of the Constitution of the Netherlands Antilles nor google it, will have an idea what the people who are responsible to them have committed to. Hopefully this will encourage them to pay a little more attention and be motivated to pick up The Laws of Sint Maarten at a bookstore.
In the constitution is stated that everyone ought to know the law. My father used to tell us “Ignorance of the law is no excuse.” which was a deterrent for saying “I didn’t know.” So in this case I think it is good for us to know what was the real reason for that flash-in-the-pan visit?
Russell A. Simmons
The structural work of the HNO hospital will be completed by the end of May 2018. The technical delivery will take place in accordance with the planning at the end of August 2018. The loose and fixed medical equipment has already been ordered and partly in the delivery and installation phase. The new ICT and the Hospital Information System - Electronic Patient File are for the most part ordered and in progress.
If the Minister of Public Health asks again where the 300 million has gone, the money has remained there. The part of the Transition that would be carried out by Berenschot was commissioned by SONA to KPMG and Deloitte Dutch Caribbean. Meanwhile, that part of the transition has been taken over by the New Hospital Otrabanda (HNO) operating entity set up by the minister and his director Gilbert Martina, supported by the St. Elizabeth Hospital (Sehos).
Transition
On Tuesday, April 17, the SONA Foundation agreed with Minister Suzanne Camelia-Römer that the foundation would hand over the project for the new hospital to the government of Curaçao, as SONA had already informed the government in September 2017. It is to be expected that this is in good cooperation with each other. However, the minister's attacks on SONA continue unabated.
Principal difference of insight
These attacks are based on a fundamental difference of opinion between the Minister and SONA. The minister recalls in every discussion that she has not yet received the audited annual accounts from 2014 up to and including 2016 from SONA. SONA shows below that this is not the core of the problem, but the consequence of it.
The core is:
- SONA parries stakeholders that damage the HNO project.
- Decisions by the government are in favour of stakeholders who damage the HNO project.
Both Minister Camelia-Römer and the Cabinet Rhuggenaath and Parliament have been informed of all the following points.
Excessive cost
In 2013, SONA countered the excessively invoiced costs of Berenschot International with which SONA signed a contract in 2011 for the implementation of the hospital project. For example, Berenschot charged a 30% surcharge on invoices from other parties. Those invoices ended up with Berenschot as executor but were paid in full by SONA. The 30% that Berenschot charged for himself, ran into the hundreds of thousands of guilders. SONA did what it is supposed to do and stepped on the brakes.
Unregulated declarations
Berenschot was unable to account for 3.3 million of their total declaration of approximately 8.5 million in 2013. SONA could not accept that. Because Berenschot was unable to provide any justification, no annual accounts could be prepared for 2013. Berenschot subsequently provided no financial justification with an auditor's report from the external auditor, for the HNO project over the years 2014 up to and including 2016.
To this day, despite all promises, SONA has not received financial statements, accompanied by an auditor's report, from Berenschot's HNO project.
Claim
Due to the government decision of 2013 to move the construction of the new hospital from the planned Amstel terrain to Otrobanda, a delay of three years arose. In 2012, SONA had already informed the government of this risk in writing. Due to this delay, the contractor Ballast Nedam filed claims with SONA of approximately 18 million US dollar above the budget for the construction of the hospital. When SONA wanted to negotiate, it turned out that Mr. Luc Steenhorst, Berenschot's project director, had acknowledged approximately 9 million US dollars of the claim in a letter dated 5 December 2015, without SONA's approval. This significantly weakened SONA's position, resulting in an increase of the costs for that project for the institution.
In a mail dated mid-December 2015, Berenschot confirms that they had acknowledged that claim to help Ballast Nedam. The claim would positively influence the value of the Ballast Nedam shares.
Lien
Contractor Ballast Nedam Infra B.V./Rönesans has placed alien of 31 million dollars on SONA bank accounts, for fear that SONA / Government will not have the means to complete the construction of the hospital project. This fear is unfounded. The so-called deficits mentioned in the media, among other things, are about non-budgeted costs. The non-budgeted costs were largely caused by the government decision to move the construction of the new hospital to Otrobanda. The construction itself has been budgeted and included in the funds already available at the Central Bank of Curaçao and St. Maarten that are earmarked for the HNO project.
Unfunded transition costs
In 2014 Berenschot started SEHOS preparations for the transition from the old to the new hospital. The total budget for this amounted to 22 million guilders. Berenschot asked for an advance of 3.5 million guilders for its transition activities. SONA agreed that Berenschot would still substantiate this amount. Berenschot never did this. In 2016, a report from Government’s Accountants Bureau (SOAB) revealed that Berenschot only performed 10% of the transition.
Superfluous
At the end of 2016, the Whiteman government, with the approval of parliament, removed 14 million guilders from SONA from the budget for the transition, for the improvement plans of SEHOS. This money has never been returned.
The further squandering of taxpayers’ money
In particular, because of all the above, SONA decided not to enter an extension with Berenschot for the working relationship that ended on 31 December 2016. In doing so, SONA also cancelled the management fee of at least 800,000 guilders per month that Berenschot wanted to charge for the remaining construction period. The word 'minimal' is literally in Berenschot's letter dated 6 January 2017. By not extending the working relationship, SONA has saved the community many millions of guilders over the past 16 months.
SONA also parried a lump sum payment of 17,5 million guilders that Berenschot presented "for unbundling the contract between SONA and Berenschot". This lump sum included the amount of 1.5 million for project director Luc Steenhorst and 500,000 guilders for board member Hein Vloet. SONA, in turn, presented a claim against Berenschot for unsubstantiated and inadequate declarations.
Berenschot favoured by successive governments
Despite all the above, in 2016 SONA received a series of letters from the then minister of Public Health, Mr Victorina, with the demand that SONA should restore the relationship with Berenschot. On behalf of the minister, the FCW-Legal office conducted an evaluation study in 2016. In connection with this, FCW-Legal spoke twice with SONA (manager of the project) and daily with Berenschot (executor of the project). SONA was not granted the usual procedure of hearing and rebuttal. Current Minister Camelia-Römer approves this in a letter dated 8 August 2017.
SONA learns from the media that the FCW-Legal report contains hard allegations against SONA. Until now, SONA has not received the final report from the successive ministers despite many requests to do so. Berenschot did receive the FCW report. This is apparent, among other things, from the fact that Berenschot quoted from this report in the April 2018 Parliamentary Assembly on the hospital project.
Ministerial supervisor works with Berenschot
The minister appoints Mr. Stanley Betrian as Ministerial Director and Regulator (MRT) in September 2017 to supervise the hospital project on her behalf. In turn, Mr. Betrian temporarily includes a Berenschot director in the ministerial team.
This Berenschot member of the Board, Hein Vloet, is jointly responsible for unsubstantiated and inadequate declarations and the inability to provide financial statements for 2014-2016, accompanied by an auditor's report, from the HNO project. This responsibility is indispensable for SONA to provide the justifications that the minister rightly demands.
On the one hand, the Minister holds SONA responsible for the lack of accountability. According to the minister, this is even a key reason to end the management agreement with SONA. On the other hand, the ministerial team is strengthened with a person who was partly responsible for failing to properly render accountability.
Betrian plays a role in delay annual accounts
Finally, Berenschot concluded an agreement in principle with SONA in April 2017 to end the working relationship. In it, it is agreed that Berenschot will transfer all the administrations that it has so far retained. In July 2017, Betrian visited Berenschot in the Netherlands, while he had not yet spoken with SONA.
Subsequently Berenschot informs SONA that it will sign the agreement and the transfer. As an explanation for this turnaround, Berenschot makes an explicit connection with the visit of Mr Betrian and what has been discussed there, namely the task of Betrian in accordance with the concept of the National Decree and the explanation given by Betrian himself.
The cheese pastry and the receipt
The minister continues to tirelessly spread the equation: "If mother sends you with 25 guilders to the store to buy a cheese pastry, she expects you to come back with a pastry, the remaining amount and the receipt."
In this case, however, the store will keep the receipt. Mother keeps the hand over their head and tells you that there is no receipt.
Conclusion
If the absence of financial statements by SONA was the true reason for the minister’s persistent allegations against SONA, it is inexplicable for the ministerial team to embrace that stakeholder that does not properly deliver the financial statements.
The fact that SONA did not deliver the annual report is therefore not the core of the problem. It is the result of the fact that cabinets and the ministers of public health, including the current minister Camelia-Römer and the cabinet Rhuggenaath, with all the consent of parliament, allow all the above.
Managers:
Reginaldo Doran
Tonnie Rossen
Commissioners:
Richard Hart
Mike Alexander
Dear Editor,
With their 3636 you have an option whereby you can benefit from service bundles which includes talk time, SMS, etc.
We all know how it is with these bundles, no videos is usually the requirement for your service to last for a month or a week according to the service bundle you chose or could afford.
After buying a new SIM card – for peace sake – I subscribed to the new 3636 thinking it would be better than the 3434 service.
To my great surprise it was not. My first bundle cost US $35. And that finished within 7 days less than it would on the 3434 service and I’m saying that because a $35 subscription is meant to last a month – supposedly if you don’t watch a lot of videos. My use of data service includes Instagram, WhatsApp (full package) and sometimes Facebook Messenger.
Now I decided to stick to the one-day plan which I considered effective, its instant renewal was intriguing, I thought I wouldn’t have to call customer service again to hear some grumpy person on the phone who seemed as if I was bothering them. I remedied that when I used to use the 3434 service with a perky and enthusiastic voice, because of course there are hectic days for them and I didn’t want to be another nonchalant customer.
Now I have been to UTS to make it known that my credit was being sucked off my phone after so called “depleting” my package bundle. I went to UTS and the customer service rep told me I was doing it wrong: I was trying to activate a bundle while I was supposed to be activating an add-on.
So from there on I was doing it right, but now when I consumed the greater part of my data I was still being robbed. Upon receiving the “data warning message” that states you have ~250MB left, at the same time the bankruptcy message comes in telling me I have no credit left.
So I went back to UTS requesting my cancellation from the 3636 service to the old 3434 only to be told, “That’s not possible, we are moving forward, not backwards.”
I replied, “Oh really?!” So I asked, “Then will the 3434 service be removed from the system eventually?” She said yes. I asked, “So what’s the solution?” She said that I have to buy a new SIM card in order to have access to the 3434 service but once you subscribe to 3636 you cannot go back to the 3434 service. I explained my reason for wanting to unsubscribe and she tells me I’m having a delay in messages, I then agree and said I lose a whole US $10 phone card sometimes. That went without much reaction.
I mean, come on, whoever the person who said, “The rich will remain rich at expense of the poor,” that person made no mistake back then when they said it and moving forward that saying still remains, I tell you.
I definitely have to see if TelCell can measure up.
Name withheld at author's request.
The development and adaptation to new rules for the spatial development of Curaçao are closely linked to the jointly shared resolutions from the Conference Habitat III. From 17 to 20 October 2016, this conference took place in the city of Quito in Ecuador. A delegation from the Curaçao government also participated. Every 20 years such a conference is held in an important city in the world.
The first conference was held in 1976 in Vancouver, Canada and the second in 1996 in Istanbul, Turkey. It would be the global effort and support for tackling the housing problem, helping to rebuild sustainable urban development and the implementation of a new urban agenda and to provide direction.
As a result, the conference led to a concrete, focused, forward-looking and action-oriented result document called "the New Urban Agenda". It concerns the new urban agenda, which is implemented by all Member States. The agenda consists of 175 resolutions, which were also approved by the participating Member States at the conference.
But, what are these resolutions that can be so decisive for the spatial development of Curaçao? Most people do not know what these resolutions contain. The writer intends here to highlight a piece of the veil to promote a broader awareness among the public. Each time comes another major resolution offer. An important resolution concerns number 12 of the new urban agenda, which refers to the approach for realizing a shared vision.
The resolution says: “We strive to realize cities and human settlements where all persons can enjoy equal rights and opportunities, as well as their fundamental freedoms, guided by the goals and principles of the Charter of the United Nations, including full respect for the international. In this respect, the New Urban Agenda is based on the universal declaration of human rights, international human rights treaties, the Millennium Declaration and the World Summit of 2005. It is also formulated by other instruments, such as the declaration on the right to development.”
The aim is also to place a considerable commitment on the table for all participating countries regarding physical actions that actively support the fight against poverty. And, regarding being able to realize equal development opportunities among citizens in new neighbourhoods to be built up. These starting points show that spatial development is not an abstract concept, but that it does intervene and tries to influence the quality of life of ordinary citizens in their daily lives.
Sharnon Isenia (Sharnon Isenia has a Masters' Degree in urban planning and business administration specializing in organizational engineering and community development)
