Introduction
A recent insolvency law case in the Dutch Supreme Court could have serious consequences for software licensees faced with a bankrupt supplier or licensor. The effect of the judgment may be to render traditional software escrow agreements insufficient and to require additional protective measures.
Summary
This update discusses an issue that may arise in relation to the recognition of foreign bankruptcies where the law of the receiving state does not provide for admittance proceedings. This issue recently arose in the Yukos proceedings.
Facts
On November 1 2007 the State Commission for Insolvency Law presented the Preliminary Bill for an Insolvency Act to the minister of justice. The most important changes to the existing Bankruptcy Act are outlined in this update.
Tax treatment in the hands of the creditor
On 13 February 2009, the CDM Executive Board (CDM EB) adopted the procedures (the "Procedures") for modalities of communication (MoC) between project participants (PPs) in clean development mechanism (CDM) projects and the CDM EB, and a standardised MoC form (the "MoC Form").1 This Legal Alert gives an overview of the main elements of the Procedures and highlights certain insolvency issues related to the MoC.
Introduction
On 14 March 2023, a new law (Tijdelijke wet transparantie turboliquidatie) was adopted by the Dutch legislator. This law introduces a filing obligation of the managing board that will apply to shortened liquidation procedures applied as per 15 November 2023. Under this obligation, the managing board of the company must file certain (financial) documents with the Dutch trade register and inform creditors of the company of this filing.
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 Supreme Court ruled that "setting aside" or replacing the board is not a requirement to qualify as a de facto director. De facto directors are not required to manage the company instead of, and to the exclusion of, the formal directors.
Background
Under Dutch law, as a matter of principle, only the company (ie a Dutch B.V. or N.V.) is liable for its debts. The directors of the company are in principle not liable.
Since the Dutch Act on Court Confirmation of a Private Restructuring Plan (“WHOA” or “Dutch Scheme”) entered into force on 1 January 2021, Dutch Courts have rendered over 200 judgments.
On 9 March 2023, (one of) the largest Dutch Schemes so far was successfully completed: the restructuring of Royal IHC and its subsidiaries (as announced in IHC’s press release). In this case, the Rotterdam Court made several important decisions enhancing the effectiveness and legal certainty surrounding the WHOA, including regarding: