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Anonymous et alia v. Nom

2009 June 30

Court: Netherlands Supreme Court

Date: June 20th, 2008

LJN number: BC4959

Case: A dispute between an investing minority shareholder and a director who controls the majority of the shares. In a situation where the parties intended that the investing minority shareholder would step back, and where negotiations with a new investor did not succeed, the bank decided to terminate the credit facility. The director then decided to act without consulting the minority shareholder. This was a violation of a clause in the corporation's articles of association, that protected the interest of the minority shareholder. Where the director asked the Court for suspension of payment without the formalities being met, NOM, as a minority shareholder, initiated proceedings against the director, alleging that disregarding the formalities made the director liable. The Court dismissed the claim, but the Court of Appeal found the director liable. The director appealed and this gave the Netherlands Supreme Court the opportunity to address the topic.

Held: The Netherlands Supreme Court ruled that the violation of a provision in the corporation's articles of association that aims to protect an individual shareholder in principle justifies liability towards the individual shareholder. It is then to the director to show to the satisfaction of the Court that his deed, in view of all the circumstances of the case at hand, cannot be held against him as a 'serious blame to the director'. The case was referred back to another Court of Appeal.


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