Op 24 februari 2010 is een overeenkomst tot stand gekomen tussen belanghebbende en de regering van Aruba (aangeduid als GOA) waarin onder meer het volgende staat:
Refinery and terminal regime
GOA will introduce a so-called Refinery and Terminal regime effective as of the Effective Date that shall provide for the following (the “Refinery and Terminal Regime”):
(i). All companies that have petroleum refinery and/or terminaling activities, including [belanghebbende], shall be eligible for the Refinery and Terminal Regime (...)
(ii) As of the effective date X may and will enter into the Refinery and Terminal Regime for its refinery and terminal operations in Aruba and shall become a Refinery and Terminal Company (…)
(c) Exemption from Turnover Tax, BBO and Throughput Fees. From and after the Effective Date all imports and exports (…) shall be exempt from turnover tax, BBO and throughput fees of any kind.(…)
(f) Permanent Cessation of Operations. If X decides to permanently cease operations at the refinery (including Terminal operations but excluding the minimal terminal operations required to support on-Island supply activities) and provides the GOA with the notice set forth in section 5.1. of the 1989 agreement, the Minimal Annual Tax Amount according to the Refinery and Terminal Regime will cease beginning at the first quarter after the Refinery closure. (…)
6. Customs Duties
The parties anticipate contemplated changes in the law governing import duties as set forth in Attachment 1. In accordance with the anticipated changes in the law, Attachment 2 contains a listing of those items related to refining and terminaling operations that will be subject to duties (taxable) or exempt from duties (non taxable) under the proposed law. (…)
13. Miscellaneous Provisions
(…)
(b) This agreement is not meant to replace the 1989 Agreement but is in addition to, and in furtherance of, the 1989 Agreement, except with respect to the tax holiday provision (Section 3.2.1.) of the 1989 Agreement, which is relinquished pursuant to Paragraph 3(a) above. Section 3.2.1. and the last two sentences of Section 3.2.2. (ii) of the 1989 Agreement shall no longer apply from and after the Effective Date.