StIP-members lose summary proceedings

November 06, 2010 11:11 AM

The court ruled against Joel da Silva de Gois and Henri Emerenciana today in the summary proceedings to reverse their dismissal as directors of privatization institute StIP.

They had argued amongst others that the decision taken by the new Board of Governors (BC) at that time was in defiance of the rules of the Good Corporate Governance law. The BC had appointed new board members, because the second re-appointment of Gois and Emerenciana at that time had not occurred legally. What’s more, it was decided to dissolve StIP. The new chairman of StIP, Ivan Kuster for his part requested that Gois and Emerenciana be forbidden to enter the offices of StIP in the WTC on penalty of non-compliance.

Regarding the re-appointment, the judge decided that the articles of association lack the specification of this term. A third appointment of a director, irrespective of a period in between the second and third appointment, is therefore adverse. The last appointment of Gois and Emerenciana in July 2009 is therefore indeed invalid. Consequently, they do not have the right to enforce this provision by legal process.

With regard to the argument of the Good Corporate Governance law, the judge stated amongst others that the responsible government is now seriously intending to finalize the dissolution of StIP within short and in that are proceeding dynamically. “The statutory purpose of StIP is gone due to one rectifying the privatization. What remains is the liquidation of StIP. Under these circumstances, it would be exaggerating to apply the Code without prejudice and in all strictness. After all, in the first place the code was written for companies and institutes in operation and not for those in liquidation.”

The dismissal is based on Gois’ and Emerenciana’s message to the government that they would only cooperate with further decertification under their terms. However, it was not up to them to make the conditions. “The government wishes to sail their own dynamic course and that’s open to them.” No standards were exceeded and one sought the advice of the SOAB (Institute Government Accountants Bureau) in advance. On Kuster’s demand, the judge stated now that Gois and Emerenciana are no longer board members, it is unlikely they will still enter the offices. “Refusing entrance would have a defamation of character, certainly after the many years they functioned as board member. So, there must be good grounds to allow the demand, and this is currently not the case.”

5 November 2010

Joel da Silva Gois and Henri Emerenciana are represented in this case by Eric de Vries of law firm HBN Law and StIP is represented by Rob Rijnberg of law firm Soliana Bonapart & Aardenburg,