NETHERLANDS Law and Practice Contributed by: Marcel Willems and Rowan Hamer, Fieldfisher
is charged with the administration and liquidation of the estate. In addition, the liabilities are fixed as well, which means that only claims that already existed on the date of the bankruptcy declaration (or arise from a pre-existing legal relationship at the time of the open - ing of the bankruptcy proceedings) can be recovered from the bankruptcy estate. As a result of the bankruptcy, creditors cannot, in prin - ciple, individually attach assets or take enforcement measures. They must submit their bankruptcy claim for verification to the trustee, who settles the general bankruptcy attachment on the bankrupt’s assets for the benefit of creditors. For the verification of a claim, it is sufficient that the creditor submit an invoice, which sufficiently shows the nature and amount of the claim. If a creditor believes that they are entitled to a preferential right, a security right (under property law) or a retention right, they will have to specify this. The main responsibility of a bankruptcy trustee in the Netherlands is to represent and settle the company’s estate for the benefit of the company’s collective creditors. In doing so, they are under the supervision of the supervisory judge, and needs the permission of the supervisory judge for a number of actions, for instance when they intend to initiate legal procedures. In addition, the trustee must also consider public inter - ests, such as the continuity of the company or the preservation of employment. The trustee also exam - ines whether there have been any irregularities that caused the bankruptcy, complicated the liquidation of the bankrupt estate, or increased the bankruptcy defi - cit. Should the trustee find that any criminal offence was committed, they should report this. If a contracting party is declared bankrupt, the start - ing point is that this does not result in any changes to the existing contract. Nevertheless, if both the other party and the debtor have not yet fully fulfilled their obligations at the time of the bankruptcy declaration, the other party will be in uncertainty as to whether the trustee will perform. With reciprocal contracts, the other party is therefore entitled to summon the trustee to declare within a reasonable time whether they will honour the contract. If the trustee is unwilling to per - form, they will lose the right to claim performance. If, on the other hand, the trustee declares they are willing
to perform according to the contract, they are obliged to provide security for the correct performance. The aforementioned starting point – that bankruptcy does not alter existing contracts – means that a bank - ruptcy trustee is, in principle, bound by an arbitration agreement entered into by the debtor prior to the dec - laration of bankruptcy, unless the bankruptcy trustee successfully sets aside the (transaction containing the) arbitration agreement (see 8. Setting Aside or Annulling a Transaction ). While the Dutch Bankrupt - cy Act imposes certain restrictions on arbitration in the context of insolvency, arbitral proceedings may, under specific conditions, be continued despite the bankruptcy, provided that no exclusive jurisdiction has been granted to a Dutch (state) court. For instance, a claim validation proceeding could be brought before an arbitral tribunal. 5.3 The End of the Liquidation Procedure(s) Statutory Debt Restructuring for Natural Persons The statutory debt restructuring scheme can end in several ways. The procedure may end by the debtor reaching a restructuring scheme with their creditors. Also, the procedure can end (prematurely) without a clean slate for the debtor, for instance because the debtor failed to comply with their statutory obligations under the procedure, or by having a clean slate for the debtor and possibly a payment to the creditors. The clean slate for the debtor means that claims for which the procedure was pronounced are no longer enforceable. Suspension of Payments Besides through satisfaction of creditors’ claims, the suspension of payments procedure can end through the confirmation by the court of a suspension restruc - turing plan. The result of the confirmation is that the restructuring plan becomes binding on those creditors who were affected by the suspension of payments, even if they voted against the proposed restructur - ing plan. In addition, the suspension of payments can end because it is revoked, for example, because the debtor is acting in bad faith in administering the estate or because there is no longer any prospect of satisfy - ing the creditors. It can also end by a simple lapse of the period for which the suspension of payments was granted. Finally, a suspension ends because it is
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