BANKRUPTCY AND INTEREST CLAIMS IN THE DUTCH CARIBBEAN
Bankruptcy vs non-bankruptcy claims
There are special statutory provisions regarding agreed interest rates, for instance, in a contract between the creditor and a party who subsequently goes bankrupt, during a bankruptcy (faillissement) and moratorium on payements (surseance van betaling). It is explicitly stated in the Netherlands Antilles Bankruptcy Decree (Faillissementsbesluit 1931) that only the interest accumulated prior to a pronunciation of bankruptcy may be paid from the bankruptcy assets (faillissementsboedel). In the event of a moratorium on payments a similar provision exists.
Bankruptcy does not mean that the bankrupt party ceases to be a debtor of non-verifiable claims. If at the winding up of a bankrupt estate there is no surplus, as due to the nature of these things there generally isn’t, some claims can of course not be settled with “within” the bankruptcy. The question that arises here is whether trustees in a bankruptcy are free to dispose of a possible surplus when winding up a bankrupt estate, in advance, without taking into account the recognized interests of third parties.
It was decided in the Supreme Court (HR) March 20 1981, in the Netherlands Law Journal (NJ) 1981, 640 (Veluwse Nutsbedrijven/Blokland q.q.) that the trustee also has to reckon with the justified interests of the bankrupt in the performance of his task. These interests will obviously also reflect an interest in the highest possible surplus. Verstijlen continues in his dissertation The Trustee in Bankruptcy (“De faillissementscurator”, 1998 publ. W.E.J. Tjeenk Willink, page 140-141): “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”. So if the trustee should reckon with the interests of the bankrupt, this will apply a priori to the interests of the creditors who cannot recover their claims until after the termination of the bankruptcy: these interests run parallel.
However, pursuant to the provision of Section 65 paragraph 1 of the Netherlands Antilles Bankruptcy Decree, aside from the bankrupt party, only the creditors may protest to the bankruptcy court regarding any act by the trustee. In the terms of this provision of the bankruptcy decree only creditors whose claims relate to the period up to the adjudication of bankruptcy are deemed creditors. One can only lodge a protest if one’s claim is a bankruptcy claim. A claim for interest accrued subsequent to the bankruptcy date is not a bankruptcy claim.
Karel Frielink
Attorney (Lawyer) / Partner
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