Avoid Bankruptcy in the Netherlands with the WHOA
By Ruud de Vaan, TeekensKarstens advocaten notarissen
As of 01 January 2021, a far-reaching law reform has been implemented in Dutch bankruptcy law. As a result of the new legislation – also referred to as Dutch Scheme or by the law’s acronym, WHOA – businesses in the Netherlands can now restructure their debts swiftly and effciently without having to go through bankruptcy. The new legislation may have a large impact on parties doing business with partners in the Netherlands.
The WHOA legislation allows businesses struggling with high debts to force their creditors to write off a large part of their claims as part of a restructuring plan, or to accept debtfor- equity swaps. Also, the legislation can be used to change existing contracts (such as rental agreements or licencing agreement) or to terminate such contracts early, without fully compensating the contract partner for the resulting damages. During the WHOA process, the debtor remains in possession of his goods and benefits from extensive legal protections against legal actions taken by creditors.
Under the WHOA, the creditor’s rights are protected in a very limited way. Creditors who are being confronted with a Dutch debtor that is going through a WHOA procedure should object to the restructuring plan promptly in order not to forfeit the right to protect the creditor’s position. Appeals procedures are not possible in most cases, and when prepared correctly, the entire process can be completed within a matter of weeks.
Through the Dutch WHOA, the EU’s Restructuring and Insolvency Directive from 2019 has been implemented into law. In the future, based on the EU’s 2015 Recast Insolvency Regulation, the decisions made in Dutch WHOA proceedings will have to be acknowledged throughout Europe. The new Dutch restructuring scheme could be a reason for companies from other EU countries to (temporarily) relocate their head offce (COMI) to the Netherlands to take advantage of this instrument.
Ruud de VaanGGI member firm
TeekensKarstens advocaten notarissen
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Leiden, Alphen aan den Rijn, Amsterdam,
T: +31 71 535 80 00
TeekensKarstens advocaten notarissen (TK) is a full-service Dutch law firm with extensive experience in the field of international law. TK has established specific international teams to provide international clients with tailor-made services and advice.
Ruud de Vaan is an attorney-at-law at TeekensKarstens and specialises in corporate and commercial litigation, as well as insolvency and restructuring matters. Ruud is regularly appointed by Dutch courts to act as liquidator in bankruptcy proceedings.
Published: Debt Collection, Restructuring & Insolvency Newsletter, No. 13, Spring 2021 l Photo: Thilo Zimmermann - stock.adobe.com