On 13 December 2024, EU member states agreed on a ‘partial’ general approach to the harmonisation of insolvency law.

On 25 October 2024, the Dutch Supreme Court ruled in a ground-breaking judgment in Royal IHC that a WHOA plan may change creditors’ and shareholders’ rights but cannot impose more onerous obligations. More specifically, the lenders cannot be compelled to provide new financing or to accept new terms and still provide new funds under previously committed credit facilities (i.e., undrawn commitments).

In yet another major restructuring in the Netherlands, the Dutch Court confirmed a restructuring plan under the Dutch Act on Court Confirmation of a Private Restructuring Plan (WHOA). The public restructuring of the Steinhoff Group (Steinhoff) was approved by the Amsterdam Court on 21 June 2023, only seven days after the confirmation hearing.

The Dutch Act implementing the EU Directive on Insolvency, Restructuring and Second Chance (the Restructuring Directive) enters into force on 1 January 2023 and will amend the current Act on Court Confirmation of a Private Restructuring Plan (the WHOA) to some extent. Below we have set out some of the material changes as a result of the implementation.

A preventive restructuring framework and second chance

On 7 December 2022, the European Commission published itsproposal for a directive of the European Parliament and of the Council harmonising certain aspects of insolvency law (COM(2022) 702; 2022/0408 (COD)) (the Proposal). Readers may be aware that the EU has already legislated in the area of insolvency.

In bankruptcy as in federal jurisprudence generally, to characterize something with the near-epithet of “federal common law” virtually dooms it to rejection.

In January 2020 we reported that, after the reconsideration suggested by two Supreme Court justices and revisions to account for the Supreme Court’s Merit Management decision,[1] the Court of Appeals for the Second Circuit stood by its origina

Following a quick procedure, the Netherlands has seen its first ever court-approved private restructuring plan permitted under the WHOA (Wet homologatie onderhands akkoord), introduced on 1 January 2021.

The Act providing for court confirmation of a private restructuring plan (Wet homologatie onderhands akkoord (WHOA)) entered into force on 1 January 2021. It introduces a fast and efficient pre-insolvency procedure to restructure a company’s business through a scheme between the company and its creditors and/or shareholders, with the possibility of a court-approved cross-class cram down.

It seems to be a common misunderstanding, even among lawyers who are not bankruptcy lawyers, that litigation in federal bankruptcy court consists largely or even exclusively of disputes about the avoidance of transactions as preferential or fraudulent, the allowance of claims and the confirmation of plans of reorganization. However, with a jurisdictional reach that encompasses “all civil proceedings . . .