The Rotterdam Guarantee Form is traditionally used by Dutch maritime lawyers to put up security in shipping in the Netherlands. The form was created by the Commission Rotterdam Guarantee Form to prevent unnecessary delay due to discussions on wording, each time a vessel is arrested. The Rotterdam Guarantee Form is usually considered to be an acceptable form of security and thus generally contributes to a quick release form arrest. A copy of the form is embedded in this page.

For further information, please feel free to contact our Transport and International Trade contact person.

Of Counsel

Henriëtte specialises in employment law and employee benefits. She represents clients in individual and collective labour law matters, such as cases relating to:

• dismissal;
• collective bargaining;
• transfer of undertakings (Protection of Employment);
• industrial action;
• co-determination.

Henriëtte has a broad experience with larger organisations, particularly in the Health Care industry. Ms. Maathuis is deputy judge at the District Court of The Hague. Her approach is realistic and to the point. She likes to do what is necessary to resolve a case. Henriëtte represents employers' as well as employees' interests.

Education

Henriëtte graduated from the Erasmus University of Rotterdam in 1998 with private law as specialization. Subsequently she practiced as a registered attorney-at-law in The Hague, with a focus on Employment law and Health Care Law. She was subsequently employed by the Erasmus Medical Center and later advised various other institutions and professionals in the Health Care Industry as an independent contractor.

Languages

• Dutch
• English

Henriëtte Maathuis

European Antitrust and Competition Law

The European antitrust area covers two prohibition rules set out in the European Treaty on the Functioning of the European Union.

• First, agreements between two or more firms which restrict competition are prohibited by Article 101 of the Treaty, subject to some limited exceptions. This provision covers a wide variety of behaviours. The most obvious example of illegal conduct infringing Article 81 is a cartel between competitors (which may involve price-fixing or market sharing).
• Second, firms in a dominant position may not abuse that position (Article 102 of the Treaty). This is for example the case for predatory pricing aiming at eliminating competitors from the market.

The European Commission is empowered by the EU Treaty to apply these prohibition rules and enjoys a number of investigative powers to that end (e.g. inspection in business and non business premises, written requests for information, etc). It may also impose fines on undertakings who violate EU antitrust rules. Since 1 May 2004, all national competition authorities are also empowered to apply fully the provisions of the Treaty in order to ensure that competition is not distorted or restricted. National courts may also apply these prohibitions so as to protect the individual rights conferred to citizens by the EU Treaty.

Dutch Antitrust and Competition Law

The Netherlands Competition Authority (NMa) enforces the Dutch Competition Act, which came into effect on 1 January 1998. The Dutch Competition Act is based on and closely linked to European law. The Act is based on a prohibition system very similar to that of Articles 81 and 82 of the EU Treaty.

The services of our antitrust and competition lawyers include:

• civil antitrust litigation;
• merger filings, investigations and litigation;
• other civil government investigations;
• antitrust counseling and compliance.

For further information regarding our services, please contact our contact person.

For more than 30 years, the lawyers of Kernkamp Advocaten have focused on serving public and private sector clients operating in the many facets of the transportation industry.

The lawyers of our Transport and International Trade Practice Group assist multimodal carriers, trucking companies, logistics providers and insurers, with a full range of legal services, with regard to issues like:

• transportation agreements
• equipment leasing, pooling, repair and maintenance and management agreements
• freight forwarder agreements
• warehousing agreements
• cargo loss and damage
• Liability under the CMR-convention
• Issues of Dutch national road transport law (book 8 DCC)

If the case at hand is transportation related, your legal needs require assistance of our specialized team of Dutch lawyers who understand the industry and are able to advise on a wide range of legal issues.

Further information

For additional information please feel free to contact our Transport and International Trade Practice Group contact person.

There is no such thing as a Dutch Franchise Act. The laws of The Netherlands do not contain a specific act with repect to franchise and distribution agreements. Hence, a franchise agreement under Dutch law is governed by the rules of general civil law, together with specific rules that are applicable to specific parts of the contract.

A franchise agreement is a Contract by which the franchisor licenses its trade name and/or business system and practices for a fee to an independent company (the franchisee). The licensed rights can include the licensed right to use trademark names, secret commercial know-how and other distinguishing features, in the sale of products or services. The use of franchise agreements is widely spread in The Netherlands, but beware that specific arrangements can be prohibited by EU and national competition law.

The lawyers of our firm represent clients who are interested in entering or exiting their franchise relationship on their own terms. For individuals seeking to invest in a particular franchise opportunity, we will review the terms and conditions set forth in your franchise documents and provide advice and counsel regarding material provisions, including:

• financial obligations;
• the length/term of the agreement;
• choice of venue and choice of law with respect to disputes;
• renewal rights;
• territorial exclusivity;
• requirements for remodelling or refurbishing the location;
• the goodwill associated with the franchisor's trademarks;
• restrictions on transfer;
• default/termination provisions.

For franchisees looking to exit their franchise relationships, our attorneys are skilled and experienced in drafting and negotiating all of the legal documents required to effectuate the sale of your franchise investment.

Further information

For additional information please contact us. Your comments and questions are always welcome. Please feel free to contact our contact person.

an introduction

Bankruptcy in The Netherlands is governed by the Dutch Bankruptcy Act. Intra-EU cross-border insolvency proceedings are governed by Council regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings. Cross-border insolvency proceedings that do not fall within the scope of the EU Insolvency Regulation will be governed by the general rules of Dutch Private International Law.

The Dutch Bankruptcy Act entered into force on 1 September 1986 and has been amended several times. Three species of insolvency procedures are to be distincted in the present Netherlands Bankruptcy Act:

• bankruptcy;
• suspension of payments;
• debt restructuring for private individuals.

bankruptcy

Any debtor (being a natural person or a private legal entity) can be declared bankrupt by the District Court. Applications for bankruptcy can be filed by:

• the natural person or private legal entity itself;
• a creditor, or
• the public prosecutor.

bankruptcy proceedings

If the petition is granted, the district court will declare the debtor bankrupt and appoint one or more trustees (in Dutch: curator). The trustee is charged with the administration and liquidation of the bankruptcy estate.

As a general rule, the District Court will only declare a debtor in state of bankruptcy if the debtor has ceased to pay. This is generally considered to be the case if various creditors have difficulty in collecting outstandings.

If the debtor is properly summoned, bankruptcy may be declared in a default judgment. In that case the debtor has a right to ask for a review within 14 days after the judgment of bankruptcy. Appeals must be lodged ultimatedly within eight days. Both review and subsequent appeals have no suspensory effect.

Suspension of payments

With the suspension of payments procedure the Dutch Bankruptcy Act intends to provide for a legal instruments in order to restructure and continue an enterprise in financial distress, which in whole or in part is viable. The suspension of payments procedure, however, rarely ever fulfilled its goal and companies that do ask for suspension of payment generally are declared bankrupt within the next few weeks after the initial decision on the suspension of payments request.

debt restructuring for private individuals

This relatively new arrangement under the Dutch Bankruptcy Act provides a possibility for private individuals in a debt position without any prospects to make a fresh start without being chased for life by his creditors.

further information

We are frequently consulted by clients from abroad with regard to issues related to Dutch Bankruptcy Law. Our firm’s lawyers represent both applicants and defendants in bankruptcy proceedings before all Dutch Courts.

Obviously, this is a very brief introduction that will not answer your specific questions. For additional information please feel free to contact our contact person. Your comments and questions are always welcome.

If you are searching for lawyers’ assistance in The Netherlands, Kernkamp Advocaten is the law firm to consider.

Kernkamp Advocaten is a Dutch law firm based in Rotterdam. The firm offers specialized legal services tuned to the economic activities in The Netherlands. The areas of expertise include:

• Insurance and Liability Law
• Labour and Employment Law
• Family Law
• Real Estate
• Transport and International Trade
• Company and Corporate Law

• Henriette Maathuis
• Serena Swint
• Arent Jan Oskam
• Babise de Laive
• Hein Kernkamp
• Maria Bowmer
• Philippine Beerman

Immediate contact with a Dutch Lawyer

For general inquiries or immediate assistance by a Dutch lawyer, please contact our contact person by phone or e-mail.

Lease of retail business premises in the Netherlands is governed by mandatory rules of law, that serve to protect the interests of the tenant and used to serve the stable development of the Dutch economy after the second world war. Although the justification for the strict rules and regulations no longer plays any role whatsoever, the rules still are in force today. This is a particularity of Dutch law landlords and tenants are confronted with on a day-to-day basis.

Under these mandatory rules a lease term should either be a maximum of two years, or a minimum total of ten years. If the parties fail to observe mandatory law, this can result in surprises. Where the lessor and the lesse agree to a fixed seven year term, the lessee can successfully force an extension of the lease term with three years (so in this example the total lease term will be ten years). After ten years, the contract will continue for an indefinite period of time; either party may then give notice of termination with a notice period of one year.

What is retail lease?

The court will have to establish whether a lease falls within the scope of the mandatory law on retail lease. From case law, it is known that retail lease includes the lease of shops, restaurants (including take-outs / take-aways), bars / cafés, and hotels, insofar as these businesses are established inside immovable property (real estate) and insofar as (part of) the premises of these businesses are accessible to the public. As this description is rather vague, there is a lot of case law about whether or not a certain agreement is a retail lease agreement. It has been decided, for instance, that the lease of petrol stations is retail lease in the sense of the law. The lease of cinema’s on the other hand, was not regarded as retail lease.

Lease term

The law provides for it, that the term for retail lease is either a maximum of two years, or a total of ten years (normally divided into two five year periods, but other combinations such as seven plus three years are also possible). With permission of the Cantonal Court, it is possible to deviate from these standard terms. If permission of the Cantonal Court is not obtained and the contract contains a non-standard term (for instance a total term of six years without prolongation), either party may invoke prolongation of the lease term up to a total of ten years.

Termination of a lease contract

In general, lease of business premises may only be terminated before the agreed end date in specific circumstances. This is considerably easier for the tenant than for the landlord. If the lessee does not agree with a termination initiated by the lessor, the lessor will always have to bring proceedings before the Cantonal Court in order to have the agreement terminated.

The lessee may terminate the agreement at the end of the first five year term or at the end of the ten year term by giving notice of termination at least one year before the end of the term.

The possibilities for the lessor are more restricted. First of all, a notice of termination without mentioning a specific ground for termination is to be held null and void. According to the law, possible grounds for termination by the lessor during the first five years of the agreed term are:

• business operations of the lessee are not "as benefits a good lessee"
• the lessor urgently needs the premises for his own use.

Most important example of the first ground for termination is non-payment of rent due; however, other examples do of course exist. From case law comes the example of a petrol station operator who frequently worked while under the influence of alcohol; this proved to be sufficient grounds for termination.

After the second five year term, the lessor may also ask for termination of the agreement on the grounds that his interest to end the agreement is more compelling than the interest of the lessee to continue the agreement. The interests of both parties will be weighed by the Cantonal Court.

Flexibility

The demands of the market are often more flexible than this relatively rigid system. For example, parties might want to agree to lease for no longer than seven years, without an automatic extension to ten years in total. And, especially in case of so-called "shop-in-shop" lease, the location of the premises might have to be (relatively) flexible as well.

Especially for these matters, the dutch legislature has introduced the facility of the so-called "derogational clauses" ("afwijkende bedingen"). When parties wish to agree to enter into a non-standard lease contract, they will have to ask the Cantonal Court for prior permission to enter into this agreement.

Certain clauses will never be allowed by the Cantonal Court. To give an example. Clauses that extend the possibilities of the lessor to terminate the agreement are not permitted under Dutch law.

The legal system in Holland seems ridgid at first sight. However, if one makes good use of the legal possibilities, it is no problem to get the desired result. Modern concepts, like the "shop-in-shop"-concept florish in The Netherlands.

Further information

For additional information please feel free to contact our Real Estate contact person. Your comments and questions are always welcome.

The attorneys of Kernkamp Advocaten are all admitted to the Rotterdam Bar and a member of The Netherlands Bar Association (the Dutch Bar), the public-law professional body for all attorneys in the Netherlands.

Netherlands attorneys may represent clients before all Courts of The Netherlands, before the European Courts of Justice and the Belenux Court of Justice, and are admitted to plea before all Courts of the Memberstates of the European Union (EC).

The team of attorneys at Kernkamp Advocaten a multi-talented and multi-faceted group. All of our attorneys speak several modern languages and deal with clients from abroad at a day-by-day basis. They combine local knowledge with experience in dealing with international cases. Since 1978 our attorneys have taken the lead in complex, high-profile cases that have lead to several landmark decisions of the Dutch Supreme Court and have been broadly discussed in the professional legal literature in The Netherlands.

If you need the expertise of one of our attorneys or have a question about our law firm, spend some time looking around this site, then call or e-mail us. Our team is ready to give your legal problems the attention they deserve.

Further information

For additional information please feel free to contact our contact person.

This article outlines the personal liability of directors of limited companies (B.V.’s) and public limited companies (N.V.’s) in the Netherlands.

Civil liability

If a director acts in a manner that may later turn out to be detrimental to the company, this does not automatically lead to personal liability. Taking calculated risks is, after all, part of running a business and being an entrepreneur, so the law allows directors a certain amount of discretion in fulfilling their responsibilities as a director.

Article 2:9 of the Dutch Civil Code requires directors to fulfil their duties towards the legal entity with due care and attention. Should they fail this duty of care, then the directors are personally liable for any damage caused to the company as a result thereof. The Dutch supreme court has ruled that such is the case if the directors have acted in a manner that constitutes serious misconduct. The Supreme Court holds that if the actions of the directors held liable would not have been taken by any other reasonably acting and experienced director in their stead, then this constitutes serious misconduct.

Examples of circumstances wherein directors have been held liable by their company are:

• Diverting the company’s funds for personal use;
• Fraudulent or illegal practices;
• Taking large and unsecured financial risks.

Article 2:9 only covers the directors’ personal liability towards the company itself. In certain circumstances, however, creditors of the company can also hold the directors separately liable for damage resulting form actions taken during their directorship, such as providing incorrect information or making promises on behalf of the company that they knew the company could not fulfil.

Liability during bankruptcy

Should a company be declared bankrupt, then the Ditch Civil Code provides the trustee in bankruptcy with the means to hold the company directors personally liable on the following grounds.

The law states that on the bankruptcy of a company limited by shares, each director shall be jointly and severally liable to the bankruptcy estate for the amount of the company’s debts that cannot be satisfied out of the liquidation of its assets if the management has manifestly performed its duties improperly and it may be assumed that these actions constituted an important cause of the bankruptcy.

The law automatically holds that the directors have performed their duties improperly in the following circumstances:

• The management has not filed the company’s accounts within 13 months of the end of the financial year;
• The books and accounts of the company have not been kept in accordance with good accounting practices and do not provide a true insight into the financial position of the company.

In such cases the burden of proof is shifted to the directors, who must then prove that their failure to file the accounts or administrate properly did not constitute an important cause of the bankruptcy. In such cases it is extremely difficult for the directors to avoid liability.

If the trustee is of the opinion that there are other grounds for personal liability the trustee can also hold the directors liable, though it is then up to the trustee to prove that there has been serious misconduct leading to bankruptcy. Should the trustee believe that persons who are not officially directors, but can be deemed to have run the company, are largely responsible for the bankruptcy, Dutch law provides that the trustee may hold these persons liable in the same manner as the actual company directors.

Fiscal liability

Directors of a Dutch company, such as a B.V. or an N.V., can also be held personally liable for unpaid tax debts of the company, in such cases where the directors have not reported the inability of the company to pay to the tax authorities. This form of liability regards taxes such as wage withholding tax and VAT ("BTW"), owed by the company to the Dutch Treasury. Once the tax authorities have made a director liable for overdue taxes imposed on company, it is up to the director to prove that the tax debt was left unpaid for reasons not attributable to him. Fiscal liability often occurs after bankruptcy, as the company is then no longer able to pay its own tax debts.

Further information

In most cases liability of legal entities appointed as directors also leads to liability of the persons behind that legal entity, even if both are foreign companies or persons living outside of The Netherlands. Should you be confronted with claims by third parties or a trustee in bankruptcy relating to the directorship of a company, it is important to seek legal advise at an early stage. Should you be considering liquidating a company in the Netherlands, it is of the utmost importance to identify any possible grounds for liability and to act accordingly before actual liquidation

Our firm has many years of experience in advising on matters regarding bankruptcies and civil liability of directors. We have also have inside expertise as court appointed liquidators at the court of Rotterdam, and can give you an immediate insight into the possible actions of your creditors or a trustee in case of bankruptcy.

Please feel free to contact Maria Bowmer, our Company and Corporate Law contact person, with any questions you may have.