In a recent judgment the Dutch Supreme Court ruled that the holder (an "Estate Claim Pledgee") of a right of pledge (an "Estate Claim Pledge") which secures one or more estate claims (each, a "Secured Estate Claim") is entitled to satisfy such claims out of the proceeds resulting from enforcement of such right of pledge ("Estate Claim Pledge Enforcement Proceeds") during the pledgor's bankruptcy provided that the claims have arisen from a legal relationship having come into existence prior to the bankruptcy.

Dutch Supreme Court 15 April 2016 (ECLI:NL:HR:2016:665)

On 1 July 2016 four important new laws applicable to businesses and directors will enter into effect.

Corporate Structures Newsletter - June 2016 Baker & McKenzie Amsterdam For more information please contact: Ilona de Schipper Associate +31 20 551 7806 Director Disqualification Act enters into force on July 1, 2016 On July 1, 2016, the Director Disqualification Act (in Dutch: Wet civielrechtelijk bestuursverbod) will enter into force. The purpose of this act is to combat bankruptcy fraud and prevent managing directors from continuing mala fide activities through existing or new legal entities. Similar legislation is already in place in at least 11 other European Union member states.

On 2 December 2015 the draft bill on modernization of bankruptcy proceedings entered into public consultation. The bill is part of the Dutch legislative programme to improve and modernize bankruptcy law, known as Wetgevingsprogramma Herijking faillissementsrecht in the Netherlands.

In a recent judgment, the Dutch Supreme Court ruled that in the event of a bankruptcy whereby the bankruptcy receiver has wrongfully collected receivables which were pledged to a secured creditor and the total value of the assets of the bankrupt estate was insufficient to pay all debts, the bankruptcy receiver was allowed to recover its salary from the proceeds of that wrongful collection with priority over the claim of that secured creditor.

In the event of bankruptcy, creditors are entitled to disclosure of the bookkeeping of the estate under certain conditions. In its decision dated 8 April 2016 (ECLI:NL:HR:2016:612), the Dutch Supreme Court ruled that this right is limited and depends on the purpose of the disclosure. Creditors are not entitled to disclosure if the purpose is to retrieve information to support their claim against a third party.

On 5 February 2016 the Dutch Supreme Court ruled that the fact that a trustee in bankruptcy unlawfully collected pledged receivables has no consequences for the ranking of his salary. That the trustee in this case would profit from his unlawful behaviour (his salary is the highest ranking claim in a bankruptcy) is undesirable, but not enough reason to change the ranking.

In its 18 December 2015 ABN/Marell judgement, the Dutch Supreme Court held that if secured debt is pledged, the holder of that right of pledge has the authority to enforce not only its own pledge but also the security connected with that pledged secured debt. Such chains of secured debt are not uncommon, but often parties are not aware that they exist. According to this new case law, security down the chain can be used in the enforcement of the primary security.

Introduction

It is often difficult to collect undisputed claims from foreign debtors. Questions arise such as the following:

Blog on The Hague Court of Appeal, 17 February 2015, ECLI:NL:GHDHA:2015:281 (FGH Bank N.V. v. Aannemingsbedrijf Fraanje B.V.)