GEBE court ruling is regretfully flawed, attorney says

PHILIPSBURG — “A remarkable verdict if not a miscarriage of justice,” attorney Jairo Bloem says about the ruling of the Court in First Instance against two members of GEBE’s supervisory board, Roberta Diaz and Conrad Richardson.

In September, GEBE filed a lawsuit against the company’s shareholder – country St. Maarten. In that case the court declared GEBE inadmissible because decisions taken by the shareholder are for the account of the company. The plaintiffs should have taken GEBE to court, not country St. Maarten, the court ruled.

On the day this ruling came down, supervisory board members Diaz and Richardson filed a lawsuit against GEBE, basically with the same demands: stop the appointment of Sharine Daniel as the company’s director and review the decision to dismiss members of the supervisory board.

“Now the court rules that most of the actions by the shareholder cannot qualify as decisions of the company,” Bloem says, adding fierce criticism of the presiding judge. “His material considerations can within reason not be taken seriously and should actually be qualified in my opinion as merely excuses not to really look at the actions or lack thereof by government.”

The court examined fourteen separate demands by the plaintiffs and rejected them all; some of these demands were, according to the court, to vague for a judgment, while others were denied because decisions taken by the chairman of the general shareholders meeting cannot be invalid or voidable.

The plaintiffs complained for instance about the decision to limit their speaking time during a shareholders meeting to fifteen minutes. The court ruled that this decision, taken by the chairman, cannot be invalid.

The plaintiffs also contested a decision by the shareholder that the meeting of September 2 continued with hearing members of the supervisory board on the agenda, while this topic was never placed on the agenda. A shareholder’s point of view cannot be invalid, the court ruled.

“A point of view is not invalid because it is not a legal action,” the ruling states. “A point of view can be incorrect but it is not invalid and it cannot be annulled.”

The decision by the shareholder to ask for advice about the appointment of new members of the supervisory board without informing the Corporate Governance Council about the vacancies new members would have to fill and without following an application procedure met a similar fate.

“This decision cannot be attributed to GEBE,” the court ruled, adding that it is therefore irrelevant.  “The minister has a duty to report his intention to nominate, appoint and dismiss board members to the Corporate Governance Council.”

The plaintiffs furthermore asked the court to order GEBE to await the outcome of a dismissal procedure against Sharine Daniel before appointing her again. But the court labeled this demand as “incomprehensible,” stating that the supervisory board has consistently argued that Daniel had already been appointed as a manager at GEBE.

Another demand was to order that GEBE give interim director Dembrook and the members of the supervisory board the opportunity to be heard about their possible dismissal. The court ruling states that the board members left a shareholder meeting on August 27 and that they did not show up for the next meeting on September 2. The plaintiffs also contested the decision to limit their right to speak to fifteen minutes.

“The court does not see why the chairman of the shareholders meeting cannot limit the speaking rights of members of the supervisory board,” the ruling states. Unlimited speaking right does not find support in the law.”

The attorney for Diaz and Richardson, Jairo Bloem, expressed his disappointment in the ruling. “It appears to me that this judgment is regretfully flawed, next to an obvious and clear attempt of the justice to try to correct or better explain an earlier defective decision. That is in itself a remarkable action.”

Diaz and Richardson are now contemplating whether it makes sense to go through with the main court procedure against the shareholder, even though they will withdraw from their positions on GEBE’s supervisory board.

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Opinion piece: A flawed verdict highlighted