NETHERLANDS Law and Practice Contributed by: Rik van Waasbergen, Sander Metzelaar, Wiebe Wajer, Iris Stielstra and Daan Komen, HerikLegal
Freight payable but not yet transferred by a merchant to a debtor, and cargo owned by a debtor held by a logistic service provider, are obvious examples of this. 5.7 Sister-Ship Arrest If the sister-ship is flying the flag of a state that is a party to the Arrest Convention, then the arrest is subject to Article 3 of the Arrest Convention (with the exception of arrests for claims as per Article 1, subparagraphs (o)–(q); see 5.1 Ship Arrests ). If the Arrest Convention is not applicable, the principle that a claimant may enforce his or her claim on all assets of his or her debtor provides that he or she may also arrest a sister-ship owned by his or her debtor. 5.8 Other Ways of Obtaining Attachment Orders Apart from ship arrests, one can arrest, in principle, all assets of the debtor. For instance, one can arrest bun - kers (if owned by the debtor). Alternatively, one can arrest the positive balance (if any) held by the debtor on a bank account. Further, one can arrest assets of the debtor held by third parties, including debts owed by those third parties to the debtor. In short, the Dutch legal system provides for broad and accessible means of obtaining security for claims against debtors. It should also be noted that the legal threshold and costs for obtaining such security are relatively low compared to other jurisdictions. 5.9 Releasing an Arrested Vessel Arrest may be lifted voluntarily upon payment of the claim or upon provision of adequate security, such as a guarantee on the basis of the NVB form ( Ned- erlandse Vereniging van Banken ) or the Rotterdam Guarantee Form 2008. Failing an agreement on the release of the vessel, the arrested party may seek judi - cial release, usually by way of summary proceedings. Grounds for release include procedural errors, a prima facie lack of a valid claim, unnecessary arrest due to sufficient security having been offered, breach of the duty of full disclosure or a balancing of interests. Pursuant to Article 6:51 (2) of the DCC, “adequate security” means that the security offered must be of such a kind (nature and volume) that the debt claim and, if need be, the costs and interests are covered
sufficiently, and that the creditor is able to recover his or her debt claim from it effortlessly. For these purposes, a recognised first-class Dutch banking institution, or an independent insurer or P&I club providing guarantees in the context of an insur - ance relationship, is deemed to be financially sound. Moreover, the creditor must be able to recover his or her debt claim from it effortlessly. A guarantee that can only be enforced outside Europe is, as a rule, not considered to meet this requirement. 5.10 Procedure for the Judicial Sale of Arrested Ships The foreclosure of an arrested vessel is done via a court sale. The arrestor who has obtained an enforce - able title against the owner of the vessel can file an application for the court sale. He or she will then have to advertise the court sale of the vessel in a number of newspapers published in the country in which the vessel is registered, and in a Dutch newspaper. The arrestor will have to inform all other parties who have arrested the ship. The ship will then be sold dur - ing an auction overseen by the court. The proceeds of the foreclosure sale will first be applied to the costs of maintaining the vessel from the date of the arrest until the date of the court sale, and to the costs of the court sale proceedings. The in-principle remaining balance will be distributed between the creditors who have arrested the vessel pro rata to their claims. In this distribution, the statutory privileges and the ranking of the claims of the creditors will be taken into account. 5.11 Insolvency Laws Applied by Maritime Courts The Dutch Insolvency code ( Faillissementswet – FW) applies to Dutch insolvency proceedings. Moreover, in the Netherlands, Regulation (EU) 2015/848 of 20 May 2015 on insolvency proceedings applies. Pursuant to the Insolvency Code, the assets of the bankrupt person will be sold, and the proceeds will be used to settle the claims of his or her creditors based on their privileged rights and pro rata to the amounts of their claims. Via the aforementioned EU Regulation, the insolvency proceedings against debtors in other EU member states are recognised in the Netherlands.
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