DUTIES OF A BANKUPTCY TRUSTEE IN THE NETHERLANDS ANTILLES
The trustee must also look after the bankrupt’s legitimate interests
In general, the main function of the bankruptcy trustee is to realize and distribute the assets of the bankrupt person or company. The aim is to enable the creditors of the bankrupt estate to receive as large a share of the proceeds of the assets as possible after the fees and costs have been paid. The main duty is thus to sell the assets and share the money among the creditors. A.o. he has to investigate the financial affairs of the bankrupt and, e.g. whether certain transfers or obligations are fraudulent (actio Pauliana) and thus eligible for nullification.
It was decided in Hoge Raad [Supreme Court] March 20 1981, “NJ” [Netherlands Law Journal] 1981, 640 (Veluwse Nutsbedrijven vs Blokland q.q.) that the trustee in the performance of his task has to reckon also with the justified interests of the bankrupt. Under those interests obviously will fall the interest in the highest possible surplus. Verstijlen (“De faillissementscurator” [The trustee in bankruptcy], dissertation 1998, W.E.J. Tjeenk Willink, page 140-141) continues: “If the trustees make a gaffe, this means that the bankrupt is left with a higher indebtedness following the bankruptcy. The trustee should also reckon with these interests of the bankrupt”. Therefore, the trustee should reckon with the interests of the bankrupt as well.
Article 65 Netherlands Antilles Bankruptcy Order provides that each of the creditors (as also the committee of creditors and the bankrupt party) by application may object with the bankruptcy judge against any act by the trustee, (and/) or can elicit an order of the bankruptcy judge that the trustee perform or omit a certain act. The purpose of this provision is to grant the (legal) personas referred to in the article (some) influence on the management and liquidation of the bankrupt estate.
Finally, the Netherlands Antilles Bankruptcy Order 1931 does not provide for a consolidated liquidation of several bankruptcies. In the event of a consolidated bankruptcy, there is in fact one joint property. If that is the case, one joint creditors’ meeting must be held in the various bankruptcies, of which all the creditors of the companies involved have to be informed and where they can exercise the powers vested in the creditors. Such a consolidation, an outstanding equation, for which there is no other justification than the interest to settle interwoven assets properly, is exclusively possible when this is not foreseeable contrary to the interest of the joint creditors of each of the bankrupt companies. Rarely is a consolidated liquidation exclusively possible, for example when only one joint account is kept for the various companies or their respective activities, cash flows, etc. are completely intertwined and can no longer or exclusively be separated with very high costs. See K. Frielink, “Tegenstrijdige belangen in het insolventierecht” (Conflicting interests in the insolvency law), Magazine for Insolvency Law 4 (2001), page 121-122.
Karel Frielink
Attorney (lawyer) / Partner
