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Concluding Remarks

It seems that many of the arguments in favour of accession by the Caribbean islands could just as well have been put forward to defend accession by the European part of the Netherlands, whereas some of the negative arguments could just as well be applied to the Caribbean islands. If an aviation industry is absent in the Netherlands (as it is on the Caribbean islands) why then not accede to become more attractive for this branch of economic activity? If the concept of “default” is too ambivalent for application in the European part of the Netherlands, then why does not this also apply to the Caribbean islands? The islands have a legal system that closely follows the legal system of the European part of the Kingdom. Given that the Civil Codes of Aruba and the Netherlands Antilles are almost copies of the Netherlands Civil Code, how can the argument then be justified that the Convention creates a legal framework particularly for developing countries and consequently is not needed for the European part of the Netherlands, but is needed for the Dutch Caribbean islands? And, finally, if the Netherlands Association of Banks considers the Convention to be even undesirable, it is difficult to understand why financial service providers on the Caribbean islands are so in favour of the Convention. It is, furthermore, interesting to note that concerns which sometimes can be heard regarding - more generally - tax havens were obviously not seen as relevant with regard to the Dutch Caribbean islands. Although these islands in many respects are tax havens, such concerns were not even mentioned, let alone dealt with. Why was not the need discussed to prevent money laundering and set up an adequately functioning supervisory aviation authority to prevent that aircraft are leased or bought with illicit gains?

The legal status of the Convention in the Kingdom of the Netherlands is complex, to put it mildly. The European part of the Netherlands is now bound by the conflict of laws rules of the Convention as a consequence of the ratification by the European Union. The Caribbean part of the Kingdom, although it does not belong to the European Union, nevertheless is also bound by the Convention’s conflict of laws rules, but stemming from the accession by the Kingdom of the Netherlands to the Cape Town Convention for the whole Dutch Caribbean region. As a result the substantive part of the Convention does not apply to the European part of the Netherlands, but its rules are applicable on the Caribbean islands: (1) the now autonomous countries within the Kingdom: Aruba, Curasao and Sint Maarten and (2) the Caribbean part of the Netherlands: Bonaire, Sint Eustatius and Saba. The practical consequences are that an aircraft registration request coming from the Caribbean part of the Netherlands, although registered in the Netherlands (and therefore with the Dutch prefix: PH), will fall under the Convention regime, whereas aircraft with a PH prefix registered in the European part of the Netherlands only falls under the Convention in as far as the private international law provisions are concerned.[1] It is submitted that more coordination between the various parts of the Kingdom should have taken place to avoid this labyrinthine situation.[2]

Elsewhere I already expressed the view that the Convention creates a very workable regime even in a Civil Law setting, although it may be more inspired by the Common Law (particularly Article 9 of the US Commercial Code) than the Civil Law tradition.[3] As such the Convention is a good example to show the impact of globalisation on national law and how such impact can be beneficial. Uniform rules create more certainty, particularly in the area of mobile equipment, which by its very nature may cross borders. The number of countries which are now a party to the Convention is clear evidence to show the correctness of this statement. The Dutch Caribbean islands, no doubt because of their size, their location and the nature of the commercial activities in which they are involved, seem to have understood this better than the Netherlands.

Acknowledgements I would like to thank my student assistant Ralph Diederen for excellent research assistance, while also doing research for his Bachelor thesis on the Cape Town Convention, Duan Angela, a student at the University of Aruba, who, at the time of writing this report, was preparing his final thesis on the Convention and who provided me with information on the law of Aruba, and Anna Berlee, who, when I was writing this report, was PhD researcher at Maastricht University preparing a thesis on the principle of transparency in European property law and who made several useful comments on the draft. This chapter was previously published in: Netherlands Reports to the Nineteenth International Congress of Comparative Law (Intersentia, 2015) and is reproduced with permission.

  • [1] For the tax consequences see B.P. Honnebier and A.P. Berkhout, The new legal and fiscal regimesthat facilitate the financing and easing of aircraft in the Netherlands and Dutch Caribbean, TaxPlanning International Review 2012, p. 1ff.
  • [2] See, as to how complicated the situation is perceived in practice, the remarks by the InternationalRegistry of Mobile Assets in Ireland (, Question5: “What countries have raftified?”): “The Kingdom of the Netherlands comprises of several territorial units, the structure of which has changed recently. Further research may be required by you.Pursuant to Article 52, paragraph 1, of the Convention and Article XXIX of the Protocol, theKingdom of the Netherlands declares that the Convention and the Protocol are to apply to the following territorial units, the Netherlands Antilles and Aruba. Please consult UNIDROIT website( and your legal advisors or both if you query relates to any of the followingterritories: the Kingdom of the Netherlands, the Netherlands Antilles, Aruba, Caribbean part of theNetherlands (the islands of Bonaire, Sint Eustatius and Saba), European part of the Netherlands,Curacao and Sint Maarten.”
  • [3] S. van Erp, The Cape Town Convention: a Model for a European System of Security InterestsRegistration?, European Review of Private Law 2004, p. 91 ff., already referred to above.
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