NETHERLANDS Law and Practice Contributed by: Folko de Vries, Ilse van Gasteren, Robert Smits and Stern Flik, Clifford Chance
the Council of 17 June 2008 on the Law Appli - cable to Contractual Obligations (“Rome I”). The submission to the jurisdiction of foreign courts may be upheld in the Netherlands. A waiver of immunity of jurisdiction may be upheld in the Netherlands. 6.3 Foreign Court Judgments If a treaty or EU regulation is in place (eg, Brussels I or Hague Choice of Court Convention) a final judgment obtained in a foreign court against the Dutch company will be recognised and enforced by the courts of the Netherlands without re-trial or re-examination of the merits. However, if no treaty is in place (for example between the Neth - erlands and the United States), a judgment of a foreign court will not be automatically enforcea - ble in the Netherlands and it will be necessary to relitigate the matter before the competent court of the Netherlands. Dutch courts will generally render a judgment in accordance with a foreign judgment, if certain conditions have been met. An arbitral award rendered pursuant an agreed arbitration clause shall be enforceable against the Dutch company in the Netherlands subject to the provisions of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 10 June 1958 (as may be amended) and the relevant provisions of Book 4 Dutch Code of Civil Procedure. 6.4 A Foreign Private Credit Lender’s Ability to Enforce Its Rights A challenge to enforcement can be done in mul - tiple ways, among which are the following: • the debtor, sponsor or other stakeholder can approach the Dutch court in a private sale proceeding to oppose, or by a separate pro - ceeding to try and block the enforcement;
• the debtor can file for insolvency including a moratorium; and • the debtor can start a Dutch Scheme/WHOA proceeding including a moratorium. 6.5 Timing and Cost of Enforcement In case of an enforcement by way of a private sale with court approval, the court process itself normally takes about six to eight weeks. If there is no opposition to the proposed sale and valu - ation evidence, then this process can be shorter. The costs of the enforcement are adviser and valuation costs and depend on the circumstanc - es and complexity. The court fees are limited. 6.6 Practical Considerations/Limitations on Enforcement In the Dutch market, normally the enforcement of security is used as a pressure point to encour - age a consensual solution. Because the enforce - ment process is relatively simple, albeit it often requires a court process, it is an effective tool to force parties into a consensual solution, which is more cost effective because the court process and valuation evidence (including sometimes a market testing exercise) will not be needed. Also, enforcement has a negative impact on value and the court process and judgment are public. 6.7 Claims Against Secured Lenders Post-Enforcement Enforcement of security can take place outside as well as during insolvency and in both cases the secured creditor can take recourse against the proceeds in full. 7. Bankruptcy and Insolvency 7.1 Impact of Insolvency Processes Dutch law has two insolvency processes, bank - ruptcy and suspension of payments. The Dutch
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