The Dutch scheme – highlights of the 10 judgments rendered to date

On 1 January 2021, the Act on confirmation of private restructuring plans (Wet homologatie onderhands akkoord, the “Dutch Scheme“) came into effect. At time of writing (25 February 2021), the Dutch courts have rendered 10 judgments in connection with the Dutch Scheme. This blog provides you with the highlights of this case law. 1. General observations Based on the information … Read more

Negotiating a contract under conditions; subject to finance

Introduction In the pre-contractual phase, Dutch professional contracting parties often negotiate a financing arrangement clause or a “subject to finance” clause.  A subject to finance clause provides a condition under which an agreement will be concluded (totstandkomingsvoorwaarde), a suspensive condition (opschortende voorwaarde) or a resolutive condition (ontbindende voorwaarde). This depends on the wording of the clause and the circumstances of … Read more

Negotiating a contract under conditions; subject to approval

Introduction In Dutch legal practice, one of the most common conditions is the reservation of approval or the “subject to approval” clause. A “subject to approval” clause provides a condition under which an agreement will be concluded (totstandkomingsvoorwaarde), a suspensive condition (opschortende voorwaarde) or a resolutive condition (ontbindende voorwaarde). This depends on the wording of the clause and the circumstances … Read more

Right to free choice of lawyer also applies to stages in a dispute that may lead to proceedings

The European Court of Justice (ECJ) has found in a judgment of May 2020 that the right of a legal assistance insured person to freely choose his or her lawyer applies not only to proceedings before a court or an administrative body, but also to stages in a dispute that may lead to such proceedings before a court. In this … 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