NETHERLANDS Law and Practice Contributed by: Marcel Willems and Rowan Hamer, Fieldfisher
against it. In other words, this procedure involves the restructuring of debts by means of a (forced) restruc - turing plan. The WHOA is included in the Bankruptcy Act, but this procedure shall be regularly discussed separately from the other insolvency procedures because of its different nature. Statutory Debt Restructuring for Natural Persons A natural person may, if it is foreseeable that they will not be able to continue to pay their debts as they fall due, or if they had already ceased to pay the due debts, request the court to apply the statutory debt restructuring to them. If the debtor successfully com - pletes the debt restructuring process, which lasts, in principle, one-and-a-half years, the debtor obtains a so-called clean slate ( schone lei ). This means that the creditors’ remaining claims, which could not be satis - fied from the debtor’s assets, are no longer enforce - able. Suspension of Payments A debtor who anticipates that they will not be able to proceed with the payment of their debts as they fall due may apply for a suspension of payments. In practice, suspension of payments is usually granted provisionally immediately. By granting the application, the debtor is granted a temporary moratorium, mean - ing that payment of debts of, in principle, unsecured creditors which exist at the time of granting the sus - pension of payments may not be enforced. The debtor remains authorised to dispose of their assets but only with the permission of a court-appointed administra - tor ( bewindvoerder ). The purpose of the moratorium is to ensure that the debtor can satisfy their credi - tors over time. To this end, the debtor may offer their creditors a restructuring plan. Even though it is also conceivable that the situation improves so much that the debtor can resume paying their debts and the sus - pension of payments can terminate for that reason, most suspensions of payments are unsuccessful in that they end in bankruptcy. Bankruptcy The moment a creditor is in a state where they have stopped paying their due debts, they can be declared bankrupt at their own request or at the request of
their creditors or the public prosecutor. By declaring bankruptcy, the debtor loses the right to dispose of and manage their assets, and the appointed trustee (curator) is charged with managing and liquidating the bankruptcy estate. The aim of bankruptcy is liquidat - ing (monetising) the assets and distributing the pro - ceeds among the creditors in accordance with their respective ranks. However, bankruptcy may also end because the debtor offers a restructuring plan to cred - itors (and thus be used as a restructuring means). The management board requires approval from its shareholders to file for bankruptcy of the company they manage. 1.3 Statutory Officers Statutory Debt Restructuring for Natural Persons Administrator (debt restructuring) In the debt restructuring scheme for natural persons, the administrator has a role similar to the one of the trustee in bankruptcy: they are in charge of managing and liquidating the estate. However, they also have the task of supervising the debtor’s compliance with the obligations arising from the proceedings, such as the obligation to apply for a job with the aim of bringing in more money to be distributed among the creditors. An administrator in the debt restructuring scheme is appointed by the court from a list of administrators who are recognised by the Legal Aid Board ( Raad voor Rechtsbijstand ). Supervisory judge The supervisory judge ( rechter-commissaris ) in the debt restructuring scheme is tasked with ensuring that the administrator performs their duties proper - ly. In other words, supervision of the administrator’s management and liquidation, and supervision of the administrator’s supervision of the debtor. Also, the supervisory judge determines which amount shall be left at the free disposal of the debtor in order to sup - port themselves. The supervisory judge is a member of the court. Court The court makes several important decisions with regard to the debt restructuring scheme; for exam - ple, it is the one that decides on the application and termination of the scheme. Most decisions are made
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