NETHERLANDS Law and Practice Contributed by: Marcel Willems and Rowan Hamer, Fieldfisher
in the interim, but it can do so even afterwards. For example, the clean slate can be revoked by the court if it turns out that it was wrongfully granted. Suspension of Payments Administrator (suspension of payments) The administrator in suspension of payments is appointed with the interests of creditors in mind. The debtor remains authorised to manage their assets and even to dispose of them, but they will require the administrator’s consent. Conversely, the administrator needs the debtor’s co-operation for any decision they want to make concerning the debtor’s estate. In practice, administrators are always lawyers. The court will, upon granting the provisional moratorium, appoint an administrator depending on their experi - ence and the complexity of the case. Supervisory judge The main duties of the supervisory judge in the sus - pension of payments procedure are to provide the administrator with advice, if required. In addition, at the administrator’s request, the supervisory judge can hear witnesses or order an expert investigation. Court The court makes several important decisions regard - ing suspension of payments. For example, it is the one that grants the suspension of payments provisionally, and then, following a hearing of the creditors, may grant it definitively for a period not exceeding one- and-a-half years (including the term of the provisional suspension of payments) or reject it, whereupon the debtor can be declared bankrupt. In addition, to pro - tect the interests of creditors, the court can take any measures it deems necessary during the proceedings on the recommendation of the supervisory judge or at the request of the administrator or of one or more creditors, or ex officio. Confirmation of a Private Restructuring Plan Restructuring expert A restructuring expert can be appointed at the request of a creditor, shareholder, employee representative, works council, or the debtor. If a restructuring expert has been appointed, they have the (exclusive) power to offer a restructuring plan to the creditors, and they
perform their duties effectively, impartially and inde - pendently. In doing so, they have broad duties and powers, such as the ability to propose amending or terminating agreements, or a request for a cooling-off period. In the petition for the appointment of a restruc - turing expert, a minimum of two and a maximum of three names of potential restructuring experts are to be put forward. Who exactly will be appointed as restructuring expert is determined by the court and will depend, in particular, on whether the restructuring expert has the trust of the board and the shareholders and creditors, and whether they have specific (sector) knowledge. As yet, there is no national list of restruc - turing experts to be appointed. Observer Under the WHOA, if the debtor prepares a restructur - ing plan themselves, the court may, ex officio or at the debtor’s request, appoint an observer. Their role is to supervise the preparation of the restructuring plan and they must keep an eye on the interests of the col - lective creditors. For the appointment of an observer, the court uses the list of bankruptcy trustees. For the appointment of an observer in a specific restructuring, the size of the estate/business, and the knowledge and experience of the intended observer are consid - ered, among other things. Expert In addition, the court can appoint an independent expert, who will advise the court. The court itself can appoint this expert and it can also formulate the ques - tions to be asked of the expert; the debtor, sharehold - ers and creditors, in principle, do not have a role in this. Court The role of the court is, in principle, limited under the WHOA with an eye to the expedited character of the proceedings and deal certainty. Nevertheless, the court can be involved early in the proceedings, for instance if a request is made to declare a cooling- off period, or when an interim judgment is required in respect of a certain aspect of the case. The court may, however, be involved for the first time only when the restructuring plan is submitted to it for confirmation.
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