A new law appears to have recently been introduced in Curaçao, a law that transcends all other existing regulations, including the Civil Code, statutory regulations, and the Rules of Corporate Governance. The law of confidentiality. A law that is very important to the Prime Minister. But ho, wait a minute, confidentiality that’s not a law, right?

That is simply an arrangement between the parties, in which mutual agreements are laid down about keeping secret certain matters that are discussed or negotiated between them. Sometimes those agreements are laid down in a single contract clause, sometimes in a complete NDA (Non-Disclosure Agreement), a confidentiality agreement.

Each confidentiality agreement contains a standard clause which the duty of confidentiality applies to, (1) if and insofar as the contracting parties with that NDA do not already have a reporting obligation or publication obligation on other grounds. (2) if and insofar as the matters that fall under the obligation of confidentiality have not already been widely advertised.

In all the aforementioned cases, the duty of confidentiality cannot be enforced, and certainly not when there is an obligation to report under the law. Examples are the reporting of unusual transactions, or the statutory approval requirements to which the management of the public limited company is subjected to.

Or the obligation to publish the annual figures of certain companies. In any case, it is an unshakable legal principle that the mandatory law cannot be set aside in the case of a contract clause.

And an NDA is a contract, just as a non-disclosure clause is an ordinary contract clause. Ergo: it is not the legal regulation that must give way to the duty of confidentiality, but the duty of confidentiality must give way when there is a reporting obligation on other grounds. The management of the company may not, therefore, under the guise of a duty of confidentiality, ignore legal or statutory provisions.

In the articles of association of RdK (Curaçao Refinery) there is a subsection in Article 2 Purpose description under c, which stipulates that the company is (also) charged with looking after the interests of, among others, the shareholder, that is the Country represented by the Council of Ministers. It is not very likely that the interests of the Land (Curaçao) will be represented in the most adequate way with a leasehold, or read: the sale and transfer of ownership of a natural resource, such as the strategically located deep sea port of Bullenbaai, note of a symbolic price of one US dollar.

Article 19 (2) of the same RdK articles of association state that the Shareholders' Meeting (note: not the company board and not the Prime Minister alone, but the entire Council of Ministers) is authorized to define financial, socio-economic and personnel policy.

This implies that even if the Supervisory Board had approved such a sudden, drastic change in personnel policy pursuant to article 13, paragraph 6, sub q and r, that in one fell swoop about 900 former Isla employees at RdK were placed on the payroll as new employees , nevertheless a Shareholders' Decree taken in the Council of Ministers had to be provided to the board of RdK or CRU.

This also implies that the board has a reporting obligation vis-à-vis the Shareholder that cannot be ignored under the guise of an obligation of confidentiality.

The Rules of Corporate Governance have a legal basis, which means that those rules cannot simply be set aside with a contract clause under the guise of a duty of confidentiality. I wonder if the Prime Minister will also send the members of the Dutch Parliament with his secrecy clod.

Lawyer Marguérite Nahar was external legal adviser to Refineria di Korsou (RdK) until mid-October 2016