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Accession for the Dutch Caribbean Islands

With regard to the Dutch Caribbean islands the viewpoint of the Dutch government

is quite different. The following arguments were mentioned in favour of accession,

stressing that it is useful and necessary to make a choice opposite to the decision

made for the Netherlands:

  • (a) Accession could broaden and thus promote the financial and economic development of these islands through the creation of an offshore aviation financing industry.
  • (b) The Caribbean islands already had legislation which promotes investment. Mentioned are the economic zone for commercial activities, the special purpose vehicle for financing and investment activities (“Vrijgestelde Vennootschap voor financierings- en beleggingsactiviteiten” or A.V.V., a limited company, profiting from a special tax regime) and a special tax for registration of ships (“tonnagebelasting”). This legislation might be a ground for the aviation industry to establish itself on these islands, if financiers are offered investment protection under the Convention.
  • (c) Financial service providers (both institutions and individual financial advisers: civil law notaries, advocates, tax advisers, trust offices) could, in addition to already existing financial products, offer an extra financial product.
  • (d) Accession would have no direct impact on the applicable legislative framework. The Convention made a choice for a broad and pragmatic legal system which could be directly applicable in all countries, so also - although the conclusion is drawn implicitly! - on the Caribbean islands.
  • (e) The Convention assumes that countries have their own national system of property law. The legal qualification, the conditions for establishment and consequences of existing property rights are left to the national legislator (the Civil Codes of Aruba and the Netherlands Antilles). The existing national property security rights can be the basis for an international security right, as laid down in the Convention. As long as parties do not reach a written agreement on publication of that security right in the international registry no third party effect will follow and national law will remain applicable. In other words: the Convention would not lead to fundamental changes in the existing property law.[1]
  • (f) Only if the parties were to agree on establishment of an international security right and this right would be registered in the international registry, would the respective Codes of Civil Procedure be affected. If not, the law on civil procedure would not change and would not affect third parties. Again the (implicit) argument seems to be that the existing legal order would not directly be affected.
  • (g) There would be no effect regarding the seizure of aircraft: the existing laws and applicable treaties would remain applicable.
  • (h) The Regulation on Insolvency of Aruba and the Netherlands Antilles would also not be effected, given that the islands would not use article XXX(3) and XI of the Aircraft Protocol, in which a special insolvency regime is laid down.

To summarise: Accession would only benefit the economy and not create unacceptable burdens by changes in the national legal system. The opposite of the conclusion for the (European part of) the Netherlands!

  • [1] Cf. B.P. Honnebier, The Dutch real rights can be the basis of International Interests under theConvention of Cape Town, just like their equivalent American security interests, European Reviewof Private Law, 2004, p. 46ff.
 
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