Welcome to Penrose Litigation
Penrose solves conflicts by negotiating and settling or through litigation. Some of the Dutch litigation issues that we encounter on a very regular basis are outlined below.
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Dutch procedural law offers various alternatives for legal proceedings, such as preliminary interlocutory proceedings (or: summary proceedings), regular proceedings on the merits, bankruptcy proceedings, attachment measures, arbitrage, inquiry proceedings before the Enterprise Court and litigation at the Netherlands Commercial Court. In order to achieve an optimal outcome for a dispute in the Netherlands, together with the client we design an effective and efficient strategy and we make right procedural choices.
Attachment and execution
Under Dutch law, a creditor is generally able to impose a preservation order on the assets of a debtor, e.g. a bank account, shares or real estate. To obtain the Dutch court’s permission to seize assets is relatively easy to achieve. The permission to issue an attachment order must be obtained through court. The request thereto should be submitted by a Dutch attorney at law. After imposing the attachment on the debtor, the creditor must instigate proceedings within a short period of time. For example through summary proceedings. If the creditor’s claim will be upheld in the main proceedings, the prejudgment attachment becomes an executory attachment. If the claim is however denied, the asset seizure is deemed unlawful and the claimant may need to compensate damages resulting from the seizure of assets under the preservation order.
Shareholder disputes in the Netherlands
A disagreement about profit distributions, the financing, the company strategy, or the interpretation of the shareholders agreement may lead to a dispute between shareholders of a Dutch company such as a B.V. or N.V. Most often such a dispute will have a major impact on the company in the Netherlands itself. In particular when there is a dispute between the shareholders of an equal joint venture. It is therefore important that the dispute will be resolved quickly. If it is not possible to reach an amicable solution, the dispute can be settled by the Dutch court. Examples of proceedings in which shareholder disputes are settled are inquiry proceedings before the Enterprise Court, arbitration or the dispute settlement procedure where under Dutch law one or more shareholders holding at least 30% of the shares may force another shareholder out of the Dutch company if the acts of such shareholder are detrimental to the company.
We are noticing an increase in the Netherlands that executive board members are being held personally liable by either their -former- company or creditors. Under Dutch law, the executive board members have an internal responsibility towards the company and an external responsibility towards third parties, mainly creditors. On the one hand, this can present opportunities for creditors if the company is not solvent or simply unwilling to pay. On the other hand, board directors are becoming more aware of how they should defend themselves against the risk of directors’ liability. A good Dutch corporate litigation attorney is paramount in such a case.