In a ruling dated 16 October 2015, the Dutch Supreme Court has confirmed the enforceability of security surplus arrangements in the event a security provider is declared bankrupt. In addition, the Dutch Supreme Court has confirmed that, unlike statutory recourse claims (regresrechten), contractual recourse claims can be construed in such a manner that they come into existence (as conditional claims) before payment by the guarantor of the debt owed by the debtor, after which they become unconditional.
In its judgment dated 2 September 2014, the Court of Appeal in The Hague ruled that moveable assets obtained subject to a retention of title (eigendomsvoorbehoud) should be considered future assets, and that ownership of such assets will be acquired after satisfaction of the relevant condition precedent (typically, full payment of the purchase price). A right of pledge over future assets created in advance will not be valid if the pledgor goes bankrupt before acquiring ownership of such assets.
In a judgment dated 20 March 2015, the Dutch Supreme Court ruled that all banks and intermediaries involved in the execution of a bank transfer, including the bank responsible for recording receipt of the bank transfer into the account held with it by the payee, qualify as parties whose services are directly or indirectly used by the payor in connection with the bank transfer.
On 27 May 2015, the bill for the Act implementing the European framework for the recovery and resolution of banks and investment firms (the "Implementation Act") and the explanatory memorandum thereto (the "Explanatory Memorandum") were published. The purpose of the Implementation Act is to implement the Bank Recovery and Resolution Directive ("BRRD") and to facilitate the application of the Single Resolution Mechanism Regulation ("SRMR").
Introduction
1. Introduction
On 21 November 2014 the draft Dutch Implementation Act for the European Framework for the Recovery and Resolution of Banks and Investment Firms (the "Implementation Act") and draft guidelines were published for public consultation purposes. The Implementation Act is designed to implement the Bank Recovery and Resolution Directive ("BRRD") and to apply the Single Resolution Mechanism ("SRM").
De Hoge Raad heeft recent meer duidelijkheid gegeven over de positie van een pandhouder in het kader van een met de pandgever afgesproken opheffingsuitverkoop. Zowel het regime van parate executie en de wettelijke grenzen die aan verrekening in faillissement worden gesteld kwamen aan de orde in dit arrest. Kort gezegd: een afspraak dat executie via een opheffingsverkoop plaatsvindt kan zonder enig risico worden gemaakt.
Recent developments
In recent years Dutch banks have established a practice of creating undisclosed rights of pledge (stil pandrecht) on all current and future receivables of their borrowers in an easy way and without the borrower's involvement. In the Supreme Court's ruling of 3 February 2012 (HR 3 February 2012, LJN BT6947), this practice was unsuccessfully put to the test by a bankruptcy trustee, who contested the alleged right of pledge of ING Bank on receivables of its bankrupt client.
- Introduction
On 13 June 2012 legislation allowing the Dutch Central Bank or the Dutch Minister of Finance to intervene in respect of failing banks and insurance companies with seat in the Netherlands ("Intervention Act") came into force with retroactive effect from 20 January 2012.