WILLEMSTAD - The Joint Court of Justice has ordered Giro Bank to pay Korpodeko one million dollars, to be increased by 4.5 percent interest from March 14, 2013.
A recovery order has been requested, which is expected shortly. The attorneys Nathania Soon, W. de Nijs and Max Janssen worked on this case on behalf of Korpodeko, while Arnold and Emile Huizing represent Giro Bank.
Korporashon pa Desaroyo di Kòrsou (Korpodeko) Foundation deposited a million dollars more than eight years ago, on March 14, 2013, into a 'time deposit account' at Giro Bank. This amount served as security for the fulfillment of the payment obligations of Dutch Antilles Express (DAE) towards Giro Bank up to the aforementioned amount. The amount has therefore been pledged to Giro Bank.
Airline carrier DAE was declared bankrupt on August 30, 2013. A major cause of the bankruptcy was that airline tickets for flights to and from Venezuela were paid for in Venezuelan bolívars, and that the Venezuelan authorities - then already led by President Nicolás Maduro - no longer allowed the bolívars to be converted into dollars.
Both development bank Korpodeko and the commercial Giro Bank provided loans to DAE that could be repaid as soon as the bolívars would be converted into dollars.
After the bankruptcy of DAE, Korpodeko, Giro Bank and DAE have therefore made arrangements by means of a settlement agreement about the collection of dollars (the so-called 'Cadivi claims'), or to encourage the Venezuelan government to exchange bolívars for dollars.
Part of these agreements was that Giro Bank would take all actions that were reasonably and commercially feasible to proceed with this conversion. If this did not lead to the collection of dollars within two years, Giro Bank could recover from Korpodeko's deposit.
However, both at first instance in July 2018 and now on appeal, it has been established that Giro Bank has taken no action at all to proceed to collect dollars. Giro Bank - for which the emergency regulation has now been applicable since December 2013 - has therefore failed to fulfill its obligations, according to both the Court of First Instance and the Joint Court of Justice.
In a ruling of 4 May last, the Court of Appeal held that if Giro Bank had taken these actions, it is sufficiently plausible that Giro Bank could have collected more than a million dollars. On this basis, Giro Bank was ordered to pay compensation for the damage suffered by Korpodeko, in this case equal to one million dollars, plus 4.5 percent interest from mid-March 2013.
Korpodeko has made it sufficiently plausible, the Court ruled, that Giro Bank could have collected a (significant) part of the Venezuelan Cadivi tranches if it had acted in time, as did other claimants - Insel Air nv and Tiara Air nv - which had in September 2015.
Giro Bank has pointed out that these two were not, unlike DAE, in a state of bankruptcy at that time, but Giro - according to the three Court Justices - has insufficiently explained that and to what extent this circumstance would have stood in the way of redress.
The loss on appeal is a new nuisance for Giro Bank, which will be settled with the help of the Country of Curaçao (with a loan from the Netherlands) and after that will cease to exist.