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Attachment orders in the United States are not equal to priority rights in the Netherlands

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Seacontainers on a cargo ship

Attachment orders in the United States are not equal to priority rights in the Netherlands

On 11 July 2014, the Supreme Court pronounced a judgment (in Dutch) in a case where Seacastle LLC had concluded a lease on sea containers with Europa West-Indië Lijnen B.V. (‘EWL’).

Since EWL failed to fulfil its payment obligations, Seacastle applied for and received permission from the court in New York to attach EWL’s assets in the United States. EWL was subsequently declared bankrupt in the Netherlands on 14 July 2008. However, the court in New York awarded the amount concerned in the attachment to Seacastle sometime after this, in spite of EWL’s bankruptcy.

The liquidator in the EWL bankruptcy demanded that this amount be added to the liquidation assets, since creditors may only recover assets belonging to overseas debtors on condition that the creditor in question holds a priority right as referred to in Article 203 of the Dutch Bankruptcy Act. The idea behind this is that creditors would otherwise be infringing the principle of equality for all creditors (paritas creditorum).

The question the Supreme Court had to answer was therefore whether an American attachment order would give the creditor preferential status that is equal to a Dutch legal priority right. In short, the Supreme Court ruled that an American attachment order cannot be considered equal to a Dutch priority right ‘in terms of content and tenor’. This means that Seacastle has to refund the money it received to the liquidator.