Court reinstates airport-director Mingo
PHILIPSBURG -- The Court in First Instance reinstated Brian Mingo as director of the Princess Juliana International Airport Exploitation Company (PJIAE) with immediate effect on Wednesday. The airport holding (PJIAH) and the exploitation company (PJIAE) both face a penalty of $20,000 per day if they do not abide by the verdict.
On Monday, May 10, the court heard arguments from both parties: Mingo as the plaintiff and PJIAH and PJIAE as defendants. The court issued a so-called condensed ruling and will release a complete verdict containing the legal considerations that underpin its decision within two weeks.
Related article: Judge to rule in airport hearing on Wednesday
The court suspended with immediate effect the decision of April 7 by PJIAE to terminate Mingo’s contract and to suspend him. The ruling makes clear that these decisions are for the account of the exploitation company and not for that of the holding: “The holding, though sole shareholder of the exploitation company, did not take a decision to terminate or to suspend. These decisions have to be attributed to the exploitation company. The service agreement is also only valid between Mingo and the exploitation company.”
Om March 16, holding-director Dexter Doncher wrote in a letter to the management of the exploitation company that there was no need to clarify the agenda point for the general shareholders meeting entitled “Hearing of Brian Mingo.” Doncher instructed PJIAE “to issue the convocation (for the shareholders meeting) with the agenda as provided. Failure to do so will be qualified as insubordination and disciplinary measures will follow.”
Doncher’s letter shows a lack of knowledge about corporate law
Doncher’s letter shows a lack of knowledge about corporate law, the ruling states: “There is no legal relationship of authority between (Doncher of) the holding and the management of the exploitation company. The legal autonomy of the exploitation company prevents such subordination. Management serves the corporate interest and its business and not just the interest of the shareholder.”
In a letter dated December 3, 2020, the holding asked Mingo to resign, but the director did not budge. In a letter dated December 8, Kamla Besancon, the chairlady of the PJIAE-board urged the holding to withdraw its demand: “It’s not in the interest of PJIAE and its stakeholders to lose its CEO at this point.”
Besancon mentioned that the dismissal would put funding for the reconstruction by the World Bank and the European Investment Bank at risk and that it would also put the relationship with the note-holders in jeopardy.
PJIAE called an extraordinary shareholders meeting for April 7. Agenda point 4: “Hearing of Brian Mingo.”
Mingo asked for a clarification of this agenda point but Doncher, the director of the holding, refused. When Besancon asked the same question at the opening of the shareholders meeting, Doncher’s reply was: “The chairman thanks Ms. Besancon for her point but the meeting will continue anyway.”
During the handling of the disputed agenda point Mingo and Besancon asked again for clarification but they did not get it. “I think you understand what this meeting is about, you’re fully aware of it,” Doncher said according to the minutes of the meeting.
After an adjournment, Doncher stated that the meeting was called by “myself” (even though the meeting was called by the exploitation company). He announced that the board had approved a resolution to terminate with immediate effect.
Besancon stated for the record that Mingo had not been heard and that the supervisory board had not been allowed to issue an advisory vote. “The board disagrees with the dismissal of Mr. Mingo for various reasons, one being that no grounds have been brought forward. Second, it is detrimental to leave a company of such importance to the economy without a CEO effective immediately.”
Besancon furthermore pointed out that “due governance procedures have not been applied and that you have violated the rules that apply by disregarding the law.”
Photo caption: File photo of Airport Holding Director Dexter Doncher seen here sitting to the left in a Parliament meeting about the SXM Airport.
On April 7, the holding confirms in writing, with an approved decision by the board of the holding, Mingo’s dismissal.
The next day, Besancon sent an email to functionaries of the holding in which she expressed her concerns. “We are very concerned that the resolution and letter of April 7 2021 will cause considerable damage to PJIAE. You have put the funding for the reconstruction at risk.”
Besancon pointed out that Doncher and certain members of the holding’s supervisory board could be held personally liable for delays and for the loss of funding. Her request to withdraw the dismissal-decision went unanswered.
The court ruling furthermore refers to a letter Schiphol International director Kjell Kloosterziel sent to Prime Minister Silveria Jacobs and Minister of Tourism and Economic Affairs Ludmilla de Weever on April 9. This letter asked the government to clarify its position on corporate governance at the airport. Kloosterziel also pointed to the potential impact of Mingo’s dismissal on the airport and the reconstruction and on Schiphol’s ability to continue its support.
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Related articles:
Judge to rule in airport hearing on Wednesday
Schiphol threatens to terminate airport cooperation agreement
Schiphol alarmed about airport’s corporate governance
Airport holding fires CEO Brian Mingo
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