THE BANKRUPTCY TRUSTEE VERSUS INDIVIDUAL CREDITORS OF A BANKRUPT UNDER THE LAWS OF THE NETHERLANDS ANTILLES
The bankruptcy trustee has exclusive powers
In a bankruptcy, the rights and powers to which the bankrupt company is entitled (for example the challenge of a claim) may only be exercised by the bankruptcy trustee.
Also, only the bankruptcy trustee may exercise significant rights to which every individual creditor is entitled outside of the bankruptcy. For example, once the company has been declared bankrupt, individual creditors of the company may not in court challenge the validity of a co-creditors claim. These issues exclusively belong to the field and authorities of the bankruptcy trustee.
The bankruptcy trustee represents the interests of the joint creditors. As a consequence of the bankruptcy the creditors lose their individual rights of recourse against the debtor (the bankrupt). The bankruptcy trustee is the ‘maintainer’ of the rights of the joint creditors (cf. Dutch Supreme Court October 28, 1926, NJ 1927, page 91).
The provisions of the Netherlands Antilles Bankruptcy Act and the system inserted therein oppose the fact that several activities of individual creditors take place beside the activities of the bankruptcy trustee, unless and to the extent these activities have explicitly been allowed; a creditor, for example, may exercise himself the right of recovery.
Karel Frielink
Attorney (lawyer) / Partner
