Taking decisions to liquidate companies has become a matter of routine when optimising corporate structures to improve cost efficiency. Increasingly, we see that such decisions have been taken either prematurely or without taking all of the relevant factors into account.
In a recent case before the Court of Appeal in ‘s-Hertogenbosch, the question was raised whether a liquidator should get access to data stored in a cloud, when the company, having a contractual relationship with the cloud provider, has gone into bankruptcy.
In the corporate inquiry (enquête) procedure of Inter Access the Supreme Court recently confirmed a decision by the Enterprise Chamber where immediate measures were ordered which led to the dilution of a majority shareholder's stake. The managing board of the company was allowed to issue shares without a resolution of the AGM.
A bill introducing special measures with regard to financial undertakings (Intervention Bill) has been published for consultation. The bill would extend government powers to intervene in financial undertakings which are in serious difficulties. Under the bill the Dutch Central Bank (DNB) could draw up a plan for the transfer of financial undertakings which are experiencing irreversible financial problems. DNB could submit the transfer plan to the courts and request an order to implement the transfer scheme.
1. Introduction
On 16 September 2011 the Netherlands Supreme Court rendered an important judgment regarding the exercise by a bank of its right to reverse a direct debit (LJN BQ873 SNS Bank/Pasman q.q.). In light of this judgment it can be concluded that, in principle, a bank may exercise its right of reversal not only if the direct debit caused the account to be overdrawn or (if an overdraft facility has been granted) the limit to be exceeded, but also if the bank will, as a result of the debtor/payer's bankruptcy, be unable to recover the claim resulting from the direct debit.
(Originally published on September 29, 2011)
The Act of May 20 2011 implements EU Directive 2009/44/EC (amending the EU Settlement Finality Directive and the EU Collateral Directive), and amends the Collateral Act of August 5 2005. The Collateral Act has always been a lender-friendly implementation of the Collateral Directive. Most of its provisions have not changed and in general, the Collateral Act remains favourable to creditors in insolvency situations and other contexts.
Constitution and perfection of collateral arrangements