The Court of Appeal rules in favor of Aruba Bank in the case against BCY Entertainment VBA and Otmar Oduber
Oranjestad, October 31, 2023
By judgment in first instance of February 3, 2021, Aruba Bank was ordered to provide an AWG bank account to BCY, a company of former minister Otmar Oduber, under the usual terms and at a customary rate so long as a judgment to the contrary would not be rendered in proceedings on the merits, determining that Aruba Bank is authorized to terminate this bank account if Mr. Oduber is convicted by the criminal court for the crimes of which he is being suspected.
Aruba Bank has appealed against this judgment, because it believes that under the freedom of contract (the freedom to determine with whom and, if so, under what terms an agreement is entered into) it cannot be obliged to open a bank account for companies that are not yet customers of Aruba Bank.
By judgment of October 31, 2023, the Joint Court of Justice of Aruba, Curaçao and Sint Maarten and of Bonaire, Sint Eustatius and Saba ruled after all in favor of Aruba Bank. The Court of Appeal overturned the judgment in first instance, considering among other things:
“In view of the facts found by the Bank, considered in context, the Bank has a well-founded and major interest in preventing integrity risk and related reputational damage by association with Oduber.
In addition to preventing integrity risks and related reputational damage, the Bank has an interest in maintaining a good relationship with correspondent banks.
The Court of Appeal is of the opinion that the Bank’s interests as described above outweigh those of BCY et al. This means that under the circumstances as aforementioned, the Bank may reasonably refuse to open a business bank account for the benefit of BCY.”
Aruba Bank is, of course, pleased with the outcome of the appeal. The judgment confirms that, among other things, the suspicion of (serious) crimes may be sufficient for a bank to refuse a person or entity a bank account.
Aruba Bank was represented in first instance by lawyer Theresa Croes-Fernandes Pedra of Juridische Praktijk GEFMA and during the appeal also by lawyers Roderik van Hees and Melitza Willems of VanEps.