NETHERLANDS Law and Practice Contributed by: Marcel Willems and Rowan Hamer, Fieldfisher
dispose of assets located in the Netherlands if the insolvency practitioner is authorised to do so under the law applicable to the bankruptcy. However, the foreign insolvency officer will have to respect attach - ments that are made by creditors and which are not subject to the foreign insolvency proceedings. Foreign Judgments With regard to civil and commercial matters, under the Brussels bis recast (Regulation (EU) No 1215/2012), a judgment given in one member state is recognised in the other member states without any form of proce - dure. Insofar as recognition under another (European) regulation or treaty is not provided for, the Dutch court will have to hear and handle the case itself. In the pro - cedure, it will have to assess whether (and, if so, to what extent) to grant authority to the foreign judgment. In assessing whether authority can be granted, the Dutch court will, in brief, examine: • whether the foreign court has assumed jurisdiction on a ground that is generally acceptable by inter - national standards; • whether the foreign judgment was reached in judi - cial proceedings that meet the requirements of due process and sufficient safeguards; • whether the foreign judgment is not contrary to Dutch public policy; and • whether the foreign judgment is not incompatible with a decision of the Dutch court given between the same parties, or with an earlier decision of a foreign court given between the same parties in a dispute involving the same subject matter and based on the same cause of action, provided that such earlier decision is capable of recognition in the Netherlands. 6.5 Co-Ordination in Cross-Border Cases Adequate co-operation between the parties involved in simultaneously pending cross-border procedures can contribute to the efficient management and settle - ment of the insolvent estate. For this reason, under the EIR recast, judges and insolvency officers should co- operate closely through, for example, the exchange of sufficient information. In addition, judges and insol - vency officers may conclude agreements and proto - cols to facilitate cross-border co-operation regarding
insolvency procedures of the same debtor, and judges from different member states may co-operate by co- ordinating directions to insolvency officers. As far as is known by the authors, no agreements have been concluded with foreign courts to co-ordinate insolvency proceedings. In large/complex cross-bor - der insolvencies, contact does occur between Dutch courts and foreign parties, but this is carried out on an ad hoc basis. 6.6 Foreign Creditors Foreign creditors are not dealt with in a different way in Dutch insolvency procedures compared to equivalent Dutch creditors. 7. Duties and Liability of Directors and Officers 7.1 Duties of Directors The duties of officers and, in particular, directors of a company, change when the company runs into finan - cial distress or becomes insolvent. The board (as a collective) is in charge of managing the company and its affiliated business. This includes the day-to-day management of the company and determining the company’s policy and strategy. Where the company is in good financial health, the direc - tors are largely free to manage the company as they deem appropriate, while focusing on the corporate interest. Depending on the circumstances of the case, the corporate interest will usually entail furthering the ongoing success of the company’s affiliated business (activities). The corporate interest may involve other (partial) interests, particularly those of shareholders, employees, creditors, customers, and other stake - holders. At the time when the company gets into financial dif - ficulties, the corporate interest will be shaped more by the interests of the company’s creditors. From this point on, directors may not allow the interests of share - holders, and other related parties of the company, to override the interests of creditors of the company. At what point in time directors should attribute more weight to creditors’ interests in their duties cannot be
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