Insolvency 2025

NETHERLANDS Law and Practice Contributed by: Marcel Willems and Rowan Hamer, Fieldfisher

6.3 Applicable Law On the basis of the EIR recast, the starting point is that insolvency procedures opened in the territory of the Netherlands are governed by Dutch law. In particular, Dutch law determines the conditions under which the procedure is opened, runs and is ended. Neverthe - less, some issues in international proceedings remain at the discretion of foreign courts. The effects of insol - vency proceedings on a contract regarding immov - able property, for example, are governed by the law of the member state where the immovable property is located. 6.4 Recognition and Enforceability Within the EU Under the EIR recast, in principle, the effects and enforcement of a decision by a member state court to open an insolvency procedure are automatically recognised in the Netherlands. Outside the EU With regard to judgments from courts outside the EU, the Netherlands applies the territoriality principle, in the absence of any other binding international regula - tion or treaty. This means that insolvency proceedings and their consequences are not automatically recog - nised in the Netherlands, and the powers of the for - eign insolvency officer and judges end at the borders of the territory. The territoriality principle has been the subject of several court judgments in which it has been clarified and mitigated. The (softened) territorial - ity principle is applied in the Netherlands as follows. • Foreign insolvency proceedings do not include assets in the Netherlands. • The legal consequences of the foreign insolvency proceedings cannot be invoked in the Netherlands to the extent that this would result in unpaid credi - tors not being able to recover the assets in the Netherlands during or after the bankruptcy. • The territoriality principle is not intended to protect the debtor against the consequences of foreign insolvency procedures, therefore it does not prevent other consequences of foreign insolvency procedures in the Netherlands. This implies that, despite the territoriality principle, the foreign insolvency officer is, in principle, entitled to

such liabilities must be agreed upon separately. An exception exists under the WHOA, where third-party releases may be permitted in relation to group com - pany guarantees, provided strict conditions are met, including joint liability and financial distress of the rel - evant group entities (see 4.2 Statutory Restructuring, Rehabilitation and Reorganisation Procedure ). 6. Cross-Border Issues in Insolvency 6.1 Sources of International Insolvency Law The main sources of international insolvency law are the European Insolvency Regulation (recast) (Regula - tion (EU) 2015/848, or EIR) and Restructuring Directive (Directive (EU) 2019/1023), and Title 1, Section 10, of the Bankruptcy Act. In addition, worth noting are the developments at and insights of the United Nations Commission on International Trade Law (UNCITRAL). These can be regarded as soft law, but also provide inspiration for national law. 6.2 Jurisdiction The EIR recast stipulates within the territory of the European Union, except Denmark, where an insolven - cy procedure can be opened. Under the EIR recast, the Dutch courts have jurisdiction to open insolvency proceedings if the Centre of Main Interests (COMI) of the debtor is located in the Netherlands. The COMI is the place where the debtor usually man - ages its interests, and which is also known as such to third parties. In the case of natural persons with a business, the COMI is presumed to be the principal place of business, and in the case of natural persons without a business, their actual place of residence. For legal entities, the COMI is presumed to be at the place of the registered office. The Dutch court will have to assess ex officio whether the COMI is located in the Netherlands. When the COMI is located in another member state, secondary insolvency proceedings can, under cer - tain circumstances, be opened in the Netherlands. In addition, if the COMI is located outside the EU, but the debtor carries on a profession or business in the Netherlands, the Dutch court may have jurisdiction to open a bankruptcy procedure.

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