International Law

THE DISMISSAL OF A TRUSTEE IN BANKRUPTCY IN THE DUTCH CARIBBEAN

By Karel.Frielink

Dismissal not always at the sole discretion of the judge

A Netherlands Antilles bankruptcy judge may at any time after having heard or after having properly summoned the trustee in bankruptcy, dismiss the trustee and replace him by one or more other trustees. This may be done at the request of the debtor, the trustee himself, another trustee, one or more creditors, the commission of creditors, or by the Judge on his own motion. There are no provisions in the law that stipulate, by reference, according to which consideration(s) such application is decided upon by the Judge.

In a particular case a bankruptcy judge had ordered the trustees in bankruptcy to execute a certain agreement. When they failed to do so they were dismissed. That dismissal was reversed by the Joint Court of Appeal of the Netherlands Antilles and Aruba (decision of June 2, 2006; HAR-143/2006), whereby it was considered: ?Such a difference of opinion, however, is no reason for the dismissal of the appellants considering that the law does not stipulate that the judgment of the bankruptcy judge in cases such as these is binding on the modus operandi required of a trustee. (?). The point of view, assumed by the appellants regarding the performance of the agreement cannot unconditionally be considered unfounded. To do so it might be necessary to resort to action at law to obtain a decision.? Therefore, as long as the trustees are not defending a senseless point of view, the mere fact that they have a different opinion from the judge is not a sufficient ground for dismissal.

Karel Frielink
Attorney (Lawyer) / Partner

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Full post as published by Karel's Legal Blog on March 14, 2009 (boomark / email).