Insel Air loses LAR-case

March 16, 2012 3:26 PM

WILLEMSTAD — Yesterday the Curaçao airline company Insel Air lost a LAR-case for the third time against Minister Charles Cooper and Dutch Antilles Express (DAE).

The judge ruled that the wet lease permit from DAE for flights from and to St. Domingo with an aircraft from Falcon Air Express complies with all rules. This permit does not prejudice Insel Air’s commercial interests.Insel Air instituted the legal proceedings because the company believed the granting of a wet lease permit to DAE contravenes the general principles of good corporate governance.

However, the judge ruled that the Insel Air lawyers had not proved this. The authority of the minister to grant exemption for the wet lease in the cases at issue is a so-called discretionary authority. An administrative judge may only marginally test the exertion of that authority. The court may only nullify a decision as regards the application of that authority if it can be deemed unreasonable, and that is not the case.

Wet lease permits are issued if the management of the company complies with all security aspects. “Now that it’s been established that Falcon Air Express complies with all security obligations, it means – to the preliminary judgment of the court – that the minister can refer to this fact when underpinning the exemption and the alteration, as explicitly done in the session. The minister considered whether the flight security remained guaranteed, even though the operational control does not rest with DAE. Now that this is the case, according to the minister, he decided in reasonableness to grant exemption of the required operational authority and in that respect changed the permit to perform flights.”

The argument of unfair competition, as raised by the lawyers of Insel Air during the consideration of the LAR-case, will not wash, said the judge. Insel Air states that the company goes to great expense in observing the laws and rules and invests huge amounts to lease aircrafts and train their crew and pilots. According to Insel Air, DAE sidesteps this all because of the wet lease construction. According to the judge, it hasn’t been established there was any form of government support to DAE. First of all, DAE is to pay Falcon Express for leasing the aircraft, the crew and maintenance. Subsequently, one cannot say the minister gives preferential treatment to DAE or that the minister uses his authority for another purpose. Therefore, one has failed to make a reasonable case for possible unequal treatment of DAE in relation to Insel Air.

15 March 2012

The representing lawyers for Insel Air are Mirto Murray of SMS Attorneys at Law and Dinesh Mishre of Spigthoff Attorneys at Law and Tax Advisers.