The Dutch scheme – Classes and voting

The Act on confirmation of private restructuring plans (Wet homologatie onderhands akkoord) – which introduces a framework allowing debtors to restructure their debts outside formal insolvency proceedings (termed the “Dutch Scheme“) – was adopted by the Dutch Senate on 6 October 2020 and will enter into force on 1 January 2021. In previous blogs we have summarised when the Dutch Scheme can be … Read more

Amsterdam District Court puts a halt to unlimited forum shopping

On 25 November 2020, the Amsterdam District Court (the “Court”) declined jurisdiction over all non-Dutch defendants (the “foreign defendants“) in proceedings for compensation of damage based partly on an infringement of Article 101 TFEU. The proceedings were initiated by four public utility companies from the Gulf States (“claimants“) against both Dutch and foreign defendants. The court rejected the claimants’ argument … Read more

Negotiating a contract under conditions; subject to signature

Introduction In the pre-contractual phase, professional contracting parties often negotiate under one or more conditions. Several different conditions are common in (commercial) legal practice: “subject to signature”, “subject to approval” and “subject to finance.” By negotiating on a “subject to signature” clause, Dutch parties agree to be bound exclusively by a written and signed contract (contrary to art. 6:217 DCC).  … Read more

Contractual provisions excluding annulment due to error, duress, fraud or undue influence

In Dutch legal practice, contracting parties often agree on provisions including an arrangement in which they waive their right to invoke the nullity of the contract in question. By doing so, the parties intend to exclude an eventual contractual annulment arising from error, duress, fraud or undue influence. The consequences of annulment can be significant for the parties involved. Therefore, … Read more

WAMCA: imperfections come to the surface

Dutch courts have not yet developed procedural rules for the WAMCA, the new Dutch regime for collective redress. This adds to pre-existing uncertainty around many procedural aspects of this new law. In my recent editorial for the Nederlands Tijdschrift voor Burgerlijk Recht (Dutch Civil Law Review, only accessible with a WoltersKluwer Navigator subscription), I discuss recent court decisions and identify … Read more

The Dutch Scheme – high flexibility in plan contents and possibility to affect group guarantees

The Act on confirmation of private restructuring plans (Wet homologatie onderhands akkoord) – which introduces a framework allowing debtors to restructure their debts outside formal insolvency proceedings (the “Dutch Scheme“) – was adopted by the Dutch Senate on 6 October 2020 and will enter into force on 1 January 2021. In previous blogs we have summarised when the Dutch Scheme … Read more

Dutch Scheme bill to be adopted at short notice

On 29 September 2020, the Dutch Senate’s justice committee decided that the Dutch Scheme bill can be dealt with as a formality (hamerstuk) without further debate. It did so after the Dutch Government submitted to the Dutch Senate’s justice committee its memorandum of reply (Memorie van Antwoord) regarding the Dutch Scheme, or to use the full title: the Act on … Read more

Bill to simplify Dutch law of evidence: concerns remain

The Minister for Legal Protection recently submitted a legislative bill with the aim of simplifying Dutch law of evidence. The bill is intended to enhance truth finding and promote efficiency and effectiveness in civil proceedings. However, we doubt that the bill will contribute to these objectives. The bill contains language that appears to extend the court’s competence to investigate facts … Read more

Dutch State breached duty of care in providing information to victims and surviving relatives of plane crash

Earlier this year, the District Court in The Hague ruled that the Dutch State is liable vis-à-vis the victims and surviving relatives of a 1992 plane crash in Faro, Portugal. The State was found liable because it is responsible for the information provided by the Dutch Aviation Safety Board (a government agency) to the victims and surviving relatives. This information, … Read more

Limitation in case of a deliberately hidden claim

Dutch law provides for an extension of the limitation period in relation to claims that were “deliberately hidden” from the creditor (article 3:321 (f) Dutch Civil Code). The extension also applies if the debtor deliberately hid the fact that the claim had become due and payable (upon fulfilment of a certain condition, for example). It is, however, unclear what kind … Read more