Common use of Possible Solutions Clause in Contracts

Possible Solutions. The advice of the Raad van State recommends that the Countries should formu- late an arrangement on how to exercise the right to vote in the Council of the EU on affairs that concern the Netherlands Antilles and Aruba. This re- commendation was supported by many writers, such as ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇ ▇▇▇▇▇ and Nap.129 ▇▇▇ ▇▇▇▇▇▇▇ van den ▇▇▇▇▇ had already stressed the need for such an arrangement even before the first OCT Decision had been adopted.130 Along with these authors, I think that such an agreement should ideally be laid down in a Kingdom act or in the Charter itself. However, I do not think that under the current circumstances the rule should be that the Caribbean Countries have a right of veto on the OCT De- cisions and other decisions of international organisations which affect them economically, similarly to Article 25 of the Charter. As long as the Kingdom only has one vote in the Council of the EU, and the OCT Decision has not been transformed into an agreement with the OCTs, the Kingdom has to take account of the legitimate interests of each Country and the Kingdom as a whole when using its vote in the Council. Under some circumstances this could mean that prevalence should be given to other interests than the economic or financial interests of one or both of the Caribbean Countries. A right of veto would moreover create potentially unsolvable situations, namely when the Caribbean Countries disagree with each other on a certain decision. If one of them expects economic advantages from it, while the other expects to be negatively affected, a right of veto would not provide a solution. I agree that any rules on this subject should start from the economic autonomy of the Countries, which is one of the cornerstones of the Kingdom order. It reflects the reality that the Caribbean Countries are economically in a different position from the European part of the Kingdom, and this requires different policies. Based on the Kingdom Charter and the economic right to self-determination the Countries should be allowed to determine these policies for themselves. This does not mean, however, that other Countries, states, or international organisations can be forced to create or maintain beneficial arrangements for the Caribbean Countries. The rule described by ▇▇▇▇▇▇ would be a good basis for an arrangement between the Countries, since it does justice to the right to self-determination of the Caribbean Countries while not ignoring the interests of the Netherlands. 129 ▇▇▇▇▇▇▇▇▇ 2002, p. 205-6 and p. 216-7, ▇▇▇▇▇▇▇ & ▇▇ ▇▇▇▇▇ 2002, p. 212 and Nap 2003b, p. 83. 130 ▇▇▇ ▇▇▇▇▇▇▇ van den ▇▇▇▇▇ 1962a, p. 595-6. The arrangement should provide that when only the interests of one Country is concerned, that Country decides the position of the Kingdom. The arrange- ment should also provide a way of resolving a deadlock which could be the result of a disagreement between the Caribbean Countries in a case where both their interests are at stake, while guaranteeing that the Kingdom will still be able to act effectively. These rules could perhaps also take their inspira- tion from the federal member states of the EU, for example Germany, a federa- tion which allows its states (Länder) to represent Germany in the EU when only their interests are concerned. The arrangement should also provide for a form of arbitration or judicial settlement of disputes on the interpretation of the arrangement, and especially to determine in concrete cases whether only the economic or financial interests of one Caribbean Country are involved, or whether the decision directly affects the interests of the other Countries or the Kingdom as a whole. This task could be attributed to the Raad van State of the Kingdom or to the Supreme Court, or to a constitutional court that could be established to resolve conflicts between the Countries.131 The three Countries have not come to any sort of agreement on this issue, nor taken steps towards such an agreement, perhaps because their interpreta- tions of the Kingdom Charter appear to differ fundamentally on this point. If this is the case, it would provide an additional argument for transforming the OCT Decision into an agreement between the EU and the OCTs so that the Netherlands Antilles and Aruba will be able to defend their own interests in a direct relation with the EU, which would do more justice to their right to self-determination.132 This does not necessarily mean that the Caribbean Countries will lose their influence over the position of the Kingdom as the member state of the EU. The Kingdom government could decide that if the Netherlands Antilles and Aruba obtain a way of negotiating directly with the EU, it will only continue to represent the Country of the Netherlands in the EU.133 In that case, the Caribbean Countries would have to decide whether they prefer to deal directly with the EU, or through the Kingdom and with the help of the Netherlands. 131 De Werd 1997. 132 Article 28 of the Kingdom Charter, which opens the door to separate membership for the Caribbean Countries of international organisations, could perhaps accommodate a direct relation between the EU and the Caribbean Countries. ▇▇▇ ▇▇▇▇▇▇▇ van den ▇▇▇▇▇ 1962a,