{"id":139184,"date":"2026-04-21T13:12:01","date_gmt":"2026-04-21T13:12:01","guid":{"rendered":"https:\/\/my.legal500.com\/guides\/?post_type=comparative_guide&#038;p=139184"},"modified":"2026-04-21T13:12:01","modified_gmt":"2026-04-21T13:12:01","slug":"netherlands-lending-secured-finance","status":"publish","type":"comparative_guide","link":"https:\/\/my.legal500.com\/guides\/chapter\/netherlands-lending-secured-finance\/","title":{"rendered":"Netherlands: Lending &amp; Secured Finance"},"content":{"rendered":"","protected":false},"template":"","class_list":["post-139184","comparative_guide","type-comparative_guide","status-publish","hentry","guides-lending-secured-finance","jurisdictions-netherlands"],"acf":[],"appp":{"post_list":{"below_title":"<div class=\"guide-author-details\"><span class=\"guide-author\">Linklaters<\/span><span class=\"guide-author-logo\"><img src=\"https:\/\/my.legal500.com\/guides\/wp-content\/uploads\/sites\/1\/2018\/11\/linklaters-logo.png\"\/><\/span><\/div>"},"post_detail":{"above_title":"<div class=\"guide-author-details\"><span class=\"guide-author\">Linklaters<\/span><span class=\"guide-author-logo\"><img src=\"https:\/\/my.legal500.com\/guides\/wp-content\/uploads\/sites\/1\/2018\/11\/linklaters-logo.png\"\/><\/span><\/div>","below_title":"<span class=\"guide-intro\">This country specific Q&amp;A provides an overview of Lending &amp; Secured Finance laws and regulations applicable in Netherlands<\/span><div class=\"guide-content\"><div class=\"filter\">\r\n\r\n\t\t\t\t<input type=\"text\" placeholder=\"Search questions and answers...\" class=\"filter-container__search-field\">\r\n\t\t\t<\/div>\r\n\r\n\t\t\t\r\n\r\n\r\n\t\t\t<ol class=\"custom-counter\">\r\n\r\n\t\t\t\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Do foreign lenders (including non-bank foreign lenders) require a licence\/regulatory approval to lend into your jurisdiction or take the benefit of security over assets located in your jurisdiction?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Foreign lenders \u2013 whether bank or non-bank \u2013 do not trigger a Dutch licensing or regulatory approval requirement solely by reason of granting loans to Dutch corporate borrowers, taking security over assets located in the Netherlands or enforcing financing documents. Taking and enforcing Dutch law security, in isolation, likewise does not constitute a regulated activity requiring a Dutch licence. No requirement exists that a lender be licensed or otherwise entitled to carry on business in the Netherlands for these purposes. Lending into the Netherlands by banks from outside of the European Union will be subject to CRD VI, as described below.<\/p>\n<p>A third-country purchaser of non-performing loans granted by an EU credit institution is required to appoint a representative in the Netherlands and, if the borrower under the loan is a natural person or a small, medium or micro enterprise, an authorised credit servicer to service the non-performing loans.<\/p>\n<p>CRD VI is shorthand for EU-Directive 2024\/1619, which is an instrument through which the European Union regulates a number of activities inside the EU performed by credit institutions from outside of the EU. Those third-country credit institutions must establish a branch in an EU Member State in order to be able to provide certain banking services inside the EU. That branch will then accordingly be subject to supervision by an EU-based regulator. One of the activities covered is lending.<\/p>\n<p>Once these rules have been implemented, a non-EU bank looking to perform lending activities with Dutch borrowers will need to do so via a branch established in the European Union. Some exceptions apply:<\/p>\n<p>i. on the basis of reverse solicitation, i.e. where services are provided solely at the own exclusive initiative of a client established in the EU;<\/p>\n<p>ii. in the interbank markets, i.e. services provided to licensed EU credit institutions; and<\/p>\n<p>iii. that constitute intragroup services, i.e. to EU undertakings that are of the same group as the third-country undertaking providing the services.<\/p>\n<p>CRD VI will be implemented into Dutch law by the Implementation Act Capital Requirements 2026 (Implementatiewet kapitaalvereisten 2026, the \u201cDutch CRD VI Implementation Act\u201d). As of the beginning of April 2026, this act has been submitted to the House of Representatives for approval, but has not yet been approved. The Dutch Central Bank (De Nederlandsche Bank) has indicated that it expects the Dutch CRD VI Implementation Act to be implemented in the spring of 2026.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Are there any laws or regulations limiting the amount of interest that can be charged by lenders?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p><em>Dutch law does not impose a general statutory cap on interest rates in corporate and institutional lending, and parties are in principle free to agree on the applicable interest rate except in the regulated consumer market.<\/em><\/p>\n<p>Nonetheless, general principles of Dutch contract law could impose safeguards that can in principle operate as a limitation. Defences based on general principles of reasonableness and fairness (<em>redelijkheid en billijkheid<\/em>) and public morality (<em>goede zeden<\/em>) may be available to fend off usurious interest. The Dutch courts have, however, in practice only intervened in truly exceptional circumstances on arguments that the interest rates were contrary to public morality. In doing so, courts will take the specific circumstances of the loan concerned into account, notably elements of distress factored into a proposed interest rate.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Are there any laws or regulations relating to the disbursement of foreign currency loan proceeds into, or the repayment of principal, interest or fees in foreign currency from, your jurisdiction?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p><em>The Netherlands does not impose exchange controls or restrictions on the movement of capital or the conversion of currencies. Foreign currency loan proceeds may be freely disbursed into the Netherlands, and repayments of principal, interest and fees may be freely made from the Netherlands in any currency without regulatory restriction.<\/em><\/p>\n<p>As regards tax, payments of principal, interest and fees made by a Dutch borrower under a financing agreement may generally be made free of Dutch withholding tax or deduction, as the Netherlands does not impose withholding tax on interest payments in ordinary commercial lending transactions between unrelated parties.<\/p>\n<p>One targeted exception applies under the Dutch Conditional Withholding Tax Act 2021 (<em>Wet bronbelasting 2021<\/em>). Dutch conditional withholding tax may be levied on interest payments made by a Dutch borrower to a recipient that is affiliated with that borrower where that recipient: (i) is resident in a low-tax jurisdiction; (ii) allocates the interest payment to a permanent establishment situated in a low-tax jurisdiction; or (iii) is involved in an abusive or hybrid structure. This regime is targeted at profit-shifting to low-tax jurisdictions and does not affect standard arm&#8217;s-length lending arrangements between unrelated parties.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Can security be taken over the following types of asset:  i.\treal property (land), plant and machinery; ii.\tequipment; iii.\tinventory;  iv.\treceivables; and v.\tshares in companies incorporated in your jurisdiction.               If so, what is the procedure \u2013 and can such security be created under a foreign law governed               document?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p><em>Security can be taken over all principal asset classes under Dutch law, reflecting the position of the Netherlands as a lender-friendly jurisdiction with a comprehensive and flexible security regime. <\/em><\/p>\n<p>The two recognised forms of proprietary security are the right of pledge (<em>pandrecht<\/em>) and the right of mortgage (<em>hypotheek<\/em>), each conferring priority over unsecured creditors. Although Dutch law does not recognise a floating charge equivalent to that available under English law, security can be taken separately over each relevant asset class without material restriction, resulting in a well-structured and predictable security package, the principal components of which are described below.<\/p>\n<p><strong>4.1 real property (land), plant and machinery;<\/strong><\/p>\n<p><em>Security over immovable property, including land and buildings, is taken by way of a right of mortgage (hypotheekrecht). A mortgage secures monetary obligations and must be created by notarial deed in the Dutch language.<\/em><\/p>\n<p>A mortgage over land automatically extends by operation of law to all constituent parts of the immovable property, including fixtures and permanent improvements. Plant and machinery permanently attached to the property are similarly covered by the mortgage if they are or have become a constituent part of it by operation of the doctrine of accession. Where they are not so attached, they remain movable assets and must be secured separately by way of a right of pledge over movable tangible assets. It is customary to incorporate such a right of pledge in the mortgage deed itself to accomplish a comprehensive security package without being exposed to characterisation discussions whether an asset is movable or immovable. This mortgage and pledge can also enforced in one combined process.<\/p>\n<p><strong>4.2 equipment;<\/strong><\/p>\n<p><em>Security over equipment (plant, machinery and other movable tangible assets that do not form part of an immovable property) is taken by way of a right of pledge. Dutch law distinguishes between a possessory pledge and a non-possessory pledge.<\/em><\/p>\n<p>A possessory pledge (<em>vuistpand<\/em>) is created by bringing the asset into the power of the pledgee or of an agreed third party. Because this requires a transfer of possession, effectively removing the assets from the debtor\u2019s business operations, disclosed pledges are rarely used for operational equipment.<\/p>\n<p>Rather, a non-possessory pledge (<em>bezitloos pandrecht<\/em>) is the standard form of security over equipment in an ongoing business.<\/p>\n<p>Lenders should be aware of the Dutch Tax Authorities\u2019 preferential right (<em>bodemrecht<\/em>) to recover unpaid tax claims from certain tangible movable assets located on the premises of the taxpayer (<em>bodemzaken<\/em>), with priority over a pledgee&#8217;s security interest. This right can materially affect recovery from a pledge over equipment.<\/p>\n<p>Under Dutch law, a security right over a tangible asset must be created in accordance with the formalities prescribed by the law of the jurisdiction in which that asset is located at the time the security right becomes effective. Accordingly, a valid pledge over equipment that is located in the Netherlands needs to be governed by Dutch law. Equipment that is abroad but in transit to the Netherlands can also be pledged by way of a Dutch law governed deed of pledge.<\/p>\n<p><strong>4.3 Stock\/inventory<\/strong>;<\/p>\n<p><em>Inventory is pledged in the same manner as equipment, but stock is not subject to the preferential position in favour of the Dutch Tax Authorities. Like a pledge over equipment, it may be taken by dispossessing the pledgor, but also by way of a non-possessory pledge registered with the Dutch Tax Authorities. The latter is the market standard. <\/em><\/p>\n<p>When structuring security over stock, the secured creditor will typically need to consider the risk of commingling of the pledged assets with goods owned by third parties or, if there are secured assets and unsecured assets at a site without actual commingling, how to identify which assets are subject to the pledge. Commingling risk is, however, mitigated by principles that the owners of commingled stock will in principle become entitled to a pro-rata share in the commingled property; and a secured creditor can be given security over that pro-rata share as and when the commingling occurs.<\/p>\n<p>When commodities or half-products are expected to be tolled or otherwise processed, the impact of that process on the security will need to be considered as well. It is not a given that security over the pre-production stock will extend to the products coming out of the process. Parties have limited room to contract out of this.<\/p>\n<p><strong>4.4 receivables; and<\/strong><\/p>\n<p><em>Receivables \u2013 including intercompany receivables, trade receivables and bank account balances \u2013 can be pledged under Dutch law by way of either a disclosed or undisclosed pledge.<\/em><\/p>\n<p>A disclosed pledge over receivables (<em>openbaar pandrecht<\/em>) is created by a deed of pledge and notification to the debtor of the relevant receivable. The pledge becomes effective upon such notification. Upon enforcement, the pledgee is entitled to collect payment of the pledged receivables directly from the account debtor.<\/p>\n<p>An undisclosed pledge (<em>stil pandrecht<\/em>) is the standard form of security over trade receivables in Dutch secured financing, as it avoids the need to notify counterparties at the outset. An undisclosed pledge can be converted into a disclosed pledge by notification to the relevant account debtors.<\/p>\n<p>Bank account pledges have to be structured as disclosed pledges, created by a deed of pledge accompanied by notice served on the account bank. Under the general banking conditions (<em>Algemene Bankvoorwaarden<\/em>), which apply to virtually all bank accounts in the Netherlands, the account bank is entitled (i) to set off amounts standing to the credit of the account in priority to other secured parties and (ii) to create a right of pledge over such credit balances from time to time. To obtain effective first-ranking security over a bank account, the pledgee must ensure that the account bank consents to the new right of pledge and waives its own rights of set-off and pledge. The account bank may be more easily inclined to waive its own right of pledge if it is part of the lender syndicate; otherwise a commonly used alternative is for the account bank to agree that it will only use its own rights of pledge and set-off for administrative costs and fees.<\/p>\n<p>A significant recent development is the entry into force of the Dutch Act on Cancellation of Prohibitions to Pledge (<em>Wet opheffing verpandingsverboden<\/em>), on 1 July 2025, which renders void contractual anti-pledge provisions and materially expands the pool of receivables available for inclusion in a Dutch security package. Grandfathering of pre-existing anti-pledge provisions lapsed on 1 October 2025.<\/p>\n<p>Dutch companies may grant security over their foreign receivables under Dutch law, but may also grant security over their Dutch law receivables under foreign law. The question whether a receivable is capable of being pledged, as well as the broader position of the debtor of the pledged claim, will however be governed by the law governing the pledged receivable itself.<\/p>\n<p><strong>4.5 shares in companies incorporated in your jurisdiction.<\/strong><\/p>\n<p><em>Shares in Dutch companies (B.V. and N.V.) can be pledged by way of a notarial deed of pledge, with the pledgee able to obtain rights to dividends and, upon enforcement, voting rights and control over the company.<\/em><\/p>\n<p>A Dutch law pledge over shares in a Dutch company (B.V. or N.V. to the extent its shares are not transferable securities) must be created by a notarial deed of pledge executed before a Dutch civil law notary and is typically noted in the shareholders&#8217; register of the relevant company. The pledge must be governed by Dutch law and cannot be validly created under a foreign law governed document. Ancillary remedies typically granted to a pledgee in the documentation include (i) the right to receive dividends and (ii) the right to exercise voting rights attached to the pledged shares after the occurrence of the agreed trigger condition. The articles of association of the company whose shares are being pledged must allow this and may impose specific formalities. Where the pledge covers 100% of the company&#8217;s shares, the exercise of voting rights gives the pledgee immediate control over the company, including the ability to remove and appoint directors, although pledgees tend to exercise restraint here.<\/p>\n<p>Enforcement is well-established in practice and can be achieved by public auction before a Dutch notary, private sale with the pledgor&#8217;s consent, or court-approved private sale. The latter is the route mostly followed (bearing in mind that a pledgor\u2019s consent can only be validly given when the security is enforceable, so cannot be assumed beforehand): the court will assess whether the proposed sale price represents fair market value, and approval typically takes approximately one to two months from the point at which a buyer has been identified and a sale and purchase agreement has been agreed.<\/p>\n<p>4.6 If so, what is the procedure \u2013 and can such security be created under a foreign law governed document?<\/p>\n<p>See above.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Can a company that is incorporated in your jurisdiction grant security over its future assets or for future obligations?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p><em>Dutch law permits security to be granted over both future assets and future obligations, provided the assets are sufficiently identifiable at the time of granting the security. <\/em><\/p>\n<p>A pledge over a future asset becomes effective only at the moment the asset comes into existence and the pledgor acquires legal, valid and unencumbered title to it. For movable tangible assets, an undisclosed pledge over future assets is created by a deed of pledge registered with the Dutch Tax Authorities. The pledge will attach automatically to each asset as and when the pledgor acquires title, without any further formalities.<\/p>\n<p>For receivables, the position depends on whether the pledge is disclosed or undisclosed. A disclosed pledge can cover both present and future receivables, provided the receivables are sufficiently identifiable and notice of pledge is given to each debtor at the time the receivable arises. An undisclosed pledge can only cover receivables that exist at the time of creation of the pledge or future claims arising from a legal relationship that exists at that time. In practice, an undisclosed pledge over receivables is created by a master deed of pledge, followed by the periodic submission of updated lists of receivables and the registration of the master deed and those lists with the Dutch Tax Authorities. Regular updates are therefore required to ensure that newly arising receivables are captured.<\/p>\n<p>One limitation applies to immovable property: a mortgage cannot be granted over property not yet owned by the security provider at the time of creation, given the restrictions on advance transfer of registered property. Future assets that subsequently become part of the mortgaged property through accession (<em>natrekking<\/em>) will, however, automatically fall within the scope of the existing mortgage upon acquisition.<\/p>\n<p>As a general insolvency consideration, assets acquired or coming into existence after the opening of Dutch insolvency proceedings will not be subject to pre-insolvency security rights and will instead form part of the bankruptcy estate.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Can a single security agreement be used to take security over all of a company\u2019s assets or are separate agreements required in relation to each type of asset?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Dutch law offers a comprehensive and well-established framework for taking security over all principal asset classes of a company. In practice, it is legally permissible and common in Dutch market practice to combine security over multiple asset classes in a single omnibus deed of pledge, which is frequently used for efficiency.<\/p>\n<p>The security package is typically documented across a combination of the following instruments:<\/p>\n<p>i. a notarial deed of pledge over shares;<\/p>\n<p>ii. a deed of pledge over movable tangible assets, including equipment and inventory, receivables and bank accounts;<\/p>\n<p>iii. a notarial deed of mortgage over immovable property; and<\/p>\n<p>iv. separate pledges over IP rights.<br \/>\nThe latter two instruments would only be taken when the value of the immovable property and IP rights justifies the costs of the added documentation.<\/p>\n<p>While Dutch law does not recognise a floating charge or equivalent single instrument covering all of a company&#8217;s assets, as described in questions 4 and 5, security can be taken separately over each relevant asset class and future assets without material restriction. Where immovable property and shares are involved, each requires a separate notarial deed; all other asset classes may be combined in the omnibus deed of pledge referred to above. We also see combinations, such as a notarial deed of share pledge incorporating a pledge over shareholder loans. These instruments are typically entered into simultaneously as part of a single coordinated security package.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Are there any notarisation or legalisation requirements in your jurisdiction? If so, what is the process for execution?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p><em>Dutch law requires notarisation for mortgage deeds and share pledges. Each must be executed as a notarial deed before a Dutch civil law notary. A mortgage must be executed in Dutch, whereas no such restriction exists for share pledges, which are customarily executed in English. All other forms of Dutch security may be created by private deed. <\/em><\/p>\n<p>In practice, notarial deeds are executed by the notary on behalf of the parties pursuant to powers of attorney, which must be signed by the relevant party, notarised locally and then apostilled (under the Hague Apostille Convention) or legalised through the applicable consular chain if the legalising notary resides outside of the Netherlands.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Are there any security registration requirements in your jurisdiction?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Dutch law does not maintain a single centralised register for security interests. The registration and perfection requirements vary by asset class, as summarised below.<\/p>\n<p>i. A mortgage must be registered with the Land Registry to become effective. The Land Registry is a public register and is freely searchable by third parties, enabling verification of existing encumbrances. Similar registers and mechanics exist for registered ships and registered aircraft.<\/p>\n<p>ii. Undisclosed deeds of pledge over movable tangible assets (including equipment and inventory) and over receivables and contractual rights must be registered with the Dutch Tax Authorities to become effective. This registration is a date-stamping and is not publicly searchable. It is also possible to create this right of pledge by way of notarial deed to forgo registration requirements, but this option is less commonly used.<\/p>\n<p>iii. For a disclosed pledge over receivables, no registration with any authority is required. The pledge becomes effective upon notification to the relevant account debtor.<\/p>\n<p>iv. For a share pledge, no registration in a public register is required. The pledge is typically noted in the shareholders&#8217; register of the pledged company, which is not a public document.<\/p>\n<p>v. For IP pledges, the registration requirements depend on the type of IP right. For Benelux trademarks and designs, registration of the pledge with the Benelux Office for Intellectual Property (BOIP) is required for the pledge to have effect against third parties. For patents, registration with the relevant patent office is similarly advisable. Where registration is available, failure to register may mean that the pledge cannot be invoked against third parties who acquire rights in the IP.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Are there any material costs that lenders should be aware of when structuring deals (for example, stamp duty on security, notarial fees, registration costs or any other charges or duties), either at the outset or upon enforcement? If so, what are the costs and what are the approaches lenders typically take in respect of such costs (e.g. upstamping)?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p><em>No stamp duty or equivalent documentary tax is payable under Dutch law in connection with the creation, execution or registration of security documents, and accordingly there is no concept of &#8220;upstamping&#8221; in the Netherlands. <\/em><\/p>\n<p>All costs of creating and perfecting security are, as a matter of standard Dutch market practice, borne by the borrower or security provider. The principal costs are as follows.<\/p>\n<p><u>Notarial fees<\/u> are payable for the execution of notarial deeds of mortgage and share pledge. These fees are typically charged on a time-cost basis or as a fixed fee agreed with the notary in advance.<\/p>\n<p><u>Registration costs<\/u> are negligible to non-existent.<\/p>\n<p><u>Enforcement costs<\/u> vary depending on the nature and number of assets involved and whether the enforcement is contested. The principal costs are professional fees (including notarial fees, bailiff costs, court application fees and, where applicable, fees of auctioneers and valuers). A public auction generally involves higher costs and lower net proceeds than a court-approved private sale, which is the preferred enforcement route in practice. VAT is payable on the transfer of secured assets on an enforcement sale and is reverse-charged to the buyer. VAT is also payable on professional services rendered in connection with the enforcement process.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Can a company guarantee or secure the obligations of another group company; are there limitations in this regard, including for example corporate benefit concerns?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p><em>Yes. A Dutch company (B.V. or N.V.) may grant guarantees and security for the obligations of other group companies, and these can be granted downstream, upstream and cross-stream. <\/em><\/p>\n<p>Issues to be mindful of are corporate benefit and financial assistance.<\/p>\n<p><u>Corporate benefit (<em>vennootschappelijk belang<\/em>)<\/u><\/p>\n<p>A legal act performed by a legal entity may be annulled if it was not conducive to the objects of that entity and the counterparty knew or ought to have known this. The granting of security, guarantees, indemnities or the assumption of joint and several liability by a company for the benefit of a party that is not a direct or indirect wholly-owned subsidiary raises in principle the question of whether the act is conducive to the granting company&#8217;s corporate objects. In practice, however, this risk is manageable and rarely presents a material obstacle, particularly where the transaction benefits the group as a whole.<\/p>\n<p>In practice, lenders mitigate the corporate benefit risk by (i) ensuring that the company&#8217;s objects clause expressly permits the provision of security and guarantees for the benefit of group companies and third parties, (ii) obtaining board resolutions in which the directors specifically address and confirm the corporate benefit to the company, and (iii) structuring the transaction so that the guaranteeing or securing entity derives genuine commercial benefit.<\/p>\n<p><u>Financial assistance<\/u><\/p>\n<p>For an N.V. (public company), Dutch law prohibits the provision of financial assistance (including security and guarantees) in connection with the subscription or acquisition of shares in the N.V. itself; this prohibition is discussed in further detail in question 11. For a B.V. (private company), there is no equivalent statutory financial assistance prohibition, except to the extent a B.V. is a subsidiary of an N.V. and comes within the scope of the N.V. prohibition on that particular account. On top of that, any distribution (which is broadly interpreted and may, in certain circumstances, include the granting of upstream guarantees or security) requires board approval following a determination that the company will be able to continue to pay its debts as they fall due after the distribution.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Are there any restrictions against providing guarantees and\/or security to support borrowings incurred for the purposes of acquiring directly or indirectly: (i) shares of the company; (ii) shares of any company which directly or indirectly owns shares in the company; or (iii) shares in a related company?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Dutch law imposes a financial assistance prohibition on N.V.s (public companies) and their subsidiaries. They may not, with a view to the subscription or acquisition by third parties of shares in their own capital, provide security, give a price guarantee, warrant or otherwise bind itself, whether jointly and severally or otherwise. This prohibition extends to:<\/p>\n<p>i. the subscription or acquisition of shares in the N.V. itself;<\/p>\n<p>ii. the subscription or acquisition of shares in a company that directly or indirectly holds shares in the N.V. (upstream financial assistance); and<\/p>\n<p>iii. the subscription or acquisition of depository receipts (certificaten) issued in respect of shares referred to under (i) or (ii).<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Can lenders in a syndicate (or, with respect to private credit deals, lenders in a club) appoint a trustee or agent to (i) hold security on the lenders\u2019s behalf, (ii) enforce the lenders\u2019 rights under the loan documentation and (iii) apply any enforcement proceeds to the claims of all lenders in the syndicate?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p><em>These shared security structures are commonplace in the Dutch market, but they require some structuring. This is driven by a principle that a security right must be granted to the creditor of the secured obligations. A security agent is therefore normally granted a parallel debt claim, which will become the secured liability of the shared security.<\/em><\/p>\n<p><u>Enforcement<\/u>: because the security will technically secure the parallel debt claim held by the security agent, the security agent will also be responsible for enforcing the security. It will do so in accordance with the terms on which the security agent was appointed, and recoveries made by the security agent will be turned over to the secured creditors in accordance with those terms too.<\/p>\n<p><u>Parallel debt structure<\/u>: To satisfy the requirement that Dutch security must be held by a creditor, Dutch financing transactions routinely incorporate a parallel debt (or independent obligation) structure. Under this structure, each obligor undertakes to pay the security agent a separate and autonomous debt (the &#8220;parallel debt&#8221;) equal in amount to (but independent from) its obligations to the lenders under the facility agreement. The Dutch security is then granted to secure the parallel debt. Because the security agent is a creditor of the parallel debt in its own right, it can hold and enforce Dutch law security separately, facilitating lender trading on the secondary market. The parallel debt structure is the standard market solution in both syndicated and private credit transactions involving Dutch obligors.<\/p>\n<p>In a syndicated facility agreement governed by English or New York law where there is security documentation governed by Dutch law, a parallel debt covenant is often included in the security agency provisions of the facility agreement or intercreditor agreement, as applicable. Where the security agent resigns or is replaced, the transfer of its rights under the parallel debt must take the form of an assignment (or contractual transfer) and not a novation, as a novation would extinguish the original parallel debt and therefore runs the risk of extinguishing the accessory security rights.<\/p>\n<p>The parallel debt structure effectively replicates the economic result of a security trust, even though Dutch law only provides limited room to create such a trust. It enables a single security agent to hold and enforce Dutch security and to apply enforcement proceeds for the benefit of all lenders in accordance with the terms of the facility agreement.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">If your jurisdiction does not recognise the role of an agent or trustee, are there any other ways to achieve the same effect and avoid individual lenders having to enforce their security separately?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Requires no response in light of question 12 above.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Do the courts in your jurisdiction generally give effect to the choice of other laws (in particular, English law) to govern the terms of any agreement entered into by a company incorporated in your jurisdiction?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Yes. Under the Rome I Regulation (Regulation (EC) No 593\/2008) on the law applicable to contractual obligations, which applies in the Netherlands as an EU Member State, the parties to a contract are in principle free to choose the law governing that contract.<\/p>\n<p>The Dutch courts will recognise and give effect to a choice of foreign governing law in financing documents. In practice, the principal qualifications are:<\/p>\n<p>i. overriding mandatory provisions of Dutch law (and, in certain cases, of the law of the place of performance) apply regardless of the chosen governing law;<\/p>\n<p>ii. where all relevant elements are located in a single non-chosen jurisdiction or exclusively within the EU, non-derogable provisions of that jurisdiction&#8217;s law or EU law (as applicable) remain applicable; and<\/p>\n<p>iii. application of a provision of the chosen law may be refused if manifestly incompatible with Dutch public policy.<\/p>\n<p>English and New York law are regularly chosen to govern facility agreements and other financing documents in Dutch transactions. Dutch courts are experienced in applying these legal systems, should these systems become relevant for the enforcement of Dutch law security.<\/p>\n<p>Although following Brexit, English law is treated as a non-EU governing law for the purposes of the Rome I Regulation, this does not materially affect the enforceability of English law choice of law clauses in commercial lending transactions due to the lack of mandatory overriding provisions of Dutch or EU law on the subject.<\/p>\n<p>Security documentation over Dutch-located assets, including mortgages over Dutch immovable property, pledges over shares in Dutch companies, and pledges over movable assets located in or in transit to the Netherlands must be governed by Dutch law. This follows from the principle that the creation and perfection of security rights in property are governed by the law of the jurisdiction in which the relevant asset is located.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Do the courts in your jurisdiction generally enforce the judgments of courts in other jurisdictions (in particular, English and US courts) and is your country a member of The Convention on the Recognition and Enforcement of Foreign Arbitral Awards (i.e. the New York Arbitration Convention)?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p><em>EU\/EEA judgments are recognised and enforced without review of the merits under the Brussels I bis Regulation, the Lugano Convention 2007 (EEA\/EFTA states) or the European Enforcement Order Regulation. Judgments from Hague Convention states are similarly enforceable: the Hague Convention 2005 applies where there is a valid exclusive choice of court agreement; the Hague Convention 2019 applies irrespective of exclusivity. The CJEU Lastre ruling around asymmetric jurisdiction clauses necessitates a case-by-case approach to satisfy precision requirements. <\/em><\/p>\n<p><u>English judgments<\/u><\/p>\n<p>Following Brexit, English judgments are enforceable under the Hague Conventions (2005 for exclusive jurisdiction clauses; 2019 for most other situations).<\/p>\n<p><u>Other foreign judgments (including US)<\/u><\/p>\n<p>Where no treaty regime applies (notably the United States), enforcement requires fresh proceedings before a Dutch court under Article 431 of the Dutch Code of Civil Procedure. The Dutch court will generally give binding effect to the foreign judgment provided that (i) the foreign court&#8217;s jurisdiction was internationally acceptable, (ii) proper procedures were observed, (iii) the judgment is not contrary to Dutch public policy, and (iv) it is not incompatible with a prior Dutch or other qualifying judgment between the same parties.<\/p>\n<p><u>Arbitral awards<\/u><\/p>\n<p>The Netherlands is a contracting state of the 1958 New York Convention. Foreign arbitral awards are recognised and enforceable, subject to the Convention&#8217;s limited grounds for refusal (including public policy and absence of a valid arbitration agreement).<\/p>\n<p><u>Asymmetric jurisdiction clauses \u2014 the <em>Lastre<\/em> development<\/u><\/p>\n<p>In its Lastre decision of 27 February 2025 (C-537\/23), the CJEU ruled on the validity of asymmetric jurisdiction clauses under Article 25 of Brussels I. Although asymmetric jurisdiction clauses are in principle permissible, they must meet a requirement of &#8220;precision&#8221;; a broadly worded clause referring to &#8220;any other court having jurisdiction&#8221; does not satisfy this requirement, unless the relevant clause could be interpreted as designating only the courts of EU member states and Lugano II Convention states. The standard LMA asymmetric jurisdiction clause \u2014 which refers to &#8220;any other courts with jurisdiction&#8221; in its carve-out \u2014 is inconsistent with the Lastre ruling and is therefore in many circumstances not appropriate.<\/p>\n<p>Market practice in response is context-dependent. In September 2025, the LMA published suggested wording for a Lastre-compliant asymmetric jurisdiction clause, restricting the lender&#8217;s carve-out to EU member states and Lugano states (Switzerland, Norway, Iceland); this wording is expected to become the new market standard and is the likely starting point for EU transactions. Fully exclusive jurisdiction clauses are an alternative; their validity is unaffected by Lastre and, whilst less flexible for lenders, litigation outside the primary chosen court is in practice rare, so the benefits of non-exclusivity may not always be crucial. In the Netherlands specifically, Lastre-compliant asymmetric non-exclusive clauses have become the dominant approach. Dutch legal opinions will typically include a qualification to the effect that any non-exclusive element in a jurisdiction clause must comply with the precision requirements established by the CJEU, and that no opinion is expressed on whether the relevant clause satisfies those requirements.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">What (briefly) is the insolvency process in your jurisdiction?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p>Dutch law offers three insolvency routes for corporates: liquidation via <em>faillissement<\/em>, a temporary creditor standstill via <em>surseance van betaling<\/em>, and the modern WHOA restructuring process (<em>Wet homologatie onderhands akkoord<\/em>), which allows a court-confirmed composition plan to bind all creditors \u2014 including dissenting classes \u2014 without appeal.<\/p>\n<p>Each of these proceedings is governed by the Dutch Bankruptcy Act (<em>Faillissementswet<\/em>, &#8220;DBA&#8221;) and is listed in Annex A of the European Insolvency Regulation (recast) (&#8220;EIR&#8221;). The Dutch framework is designed to offer both liquidation and restructuring routes, and has in recent years been significantly modernised with the introduction of the WHOA.<\/p>\n<p><u>Bankruptcy (<em>faillissement<\/em>)<\/u><\/p>\n<p>Bankruptcy proceedings may be commenced if a company has ceased to pay its debts. This is principally assessed on a cash flow basis, though a balance sheet test or other circumstances may also be relevant. A company is generally considered to have ceased paying its debts if it has at least two outstanding debts owed to different creditors, of which at least one is due and payable. Proceedings may be initiated by the company itself, by a creditor, or in exceptional circumstances by the public prosecutor, by filing a petition with the court of the company&#8217;s statutory seat.<\/p>\n<p>The primary objective of bankruptcy is the realisation of the company&#8217;s assets and the distribution of proceeds to creditors. Upon the declaration of bankruptcy, the court appoints a bankruptcy trustee (<em>curator<\/em>) and a supervisory judge (<em>rechter-commissaris<\/em>). The trustee is exclusively entitled to administer and dispose of the assets comprised in the insolvency estate. The debtor loses the right to manage and dispose of its assets with retroactive effect to the beginning of the day on which the bankruptcy order is made. There is no statutory timescale for bankruptcy proceedings; in practice, they typically last approximately two years, or longer where litigation is involved. On closing of the proceedings, the company will ordinarily be dissolved.<\/p>\n<p><u>Suspension of payments <\/u><\/p>\n<p>Suspension of payments may be applied for by a company that is, or anticipates that it will be, unable to meet its liabilities as they fall due. Only the company itself may file the application. Upon the grant of a provisional suspension, the court imposes a standstill period during which unsecured and non-preferential creditors are prevented from enforcing their claims. The proceedings may last for a maximum period of three years.<\/p>\n<p><u>WHOA<\/u><\/p>\n<p>WHOA proceedings may be commenced by a company, or by any of its creditors, shareholders or works councils, if it is reasonably plausible that the company will be unable to continue paying its debts as they fall due. The purpose of the proceedings is to offer a composition plan to all or part of the company&#8217;s creditors and\/or shareholders, with a view to either (i) restructuring the company&#8217;s debts so as to enable it to continue operating on a going concern basis, or (ii) effecting a controlled wind-down of its business operations.<\/p>\n<p>Approval by a class requires a majority in value of at least two-thirds of the claims voted in that class; there is no headcount test. Once confirmed by the court, the WHOA plan is binding on all creditors and shareholders who were eligible to vote, including those in dissenting classes. The confirmation order is not subject to appeal.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">What impact does the insolvency process have on the ability of a lender to enforce its rights as a secured party over the security?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p><em>Dutch law is broadly creditor-friendly: secured creditors may generally enforce their security in bankruptcy as if there were no insolvency (the separatist principle), though a court-imposed stay of up to four months may apply across all three procedures. In a WHOA, a confirmed plan may compromise secured claims \u2014 including by reducing principal or converting debt to equity \u2014 subject to a liquidation floor and a cash-out option for secured creditors.<\/em><\/p>\n<p><u>Bankruptcy<\/u><\/p>\n<p>Dutch law is broadly creditor-friendly in its treatment of secured parties in bankruptcy. In principle, secured creditors retain the right to enforce their security in bankruptcy as if there were no bankruptcy (the separatist principle). However, the court may, at the request of any interested party, impose a stay period (<em>afkoelingsperiode<\/em>) of up to four months, during which all enforcement actions (by secured and unsecured creditors alike) are stayed.<\/p>\n<p>The bankruptcy trustee may require a secured creditor to enforce its security within a reasonable period. If the secured creditor fails to do so within that period, the trustee may sell the secured assets on behalf of the secured creditor, with the secured creditor entitled to the proceeds after deduction of a contribution to the general costs of the bankruptcy estate. In practice, the secured creditor and the trustee frequently reach pragmatic agreements on the realisation of the secured assets by the trustee against a negotiated fee deducted from the proceeds.<\/p>\n<p>If the enforcement proceeds are insufficient to discharge the secured debt in full, the secured creditor ranks as an unsecured creditor for the shortfall.<\/p>\n<p><u>Suspension of payments <\/u><\/p>\n<p>Secured and preferential creditors are generally not stayed during a suspension of payments and may enforce their security (provided a payment default has occurred). However, the court may, at the request of the company or the administrator (<em>bewindvoerder<\/em>), impose a stay of up to four months, during which secured and preferential creditors are prevented from enforcing their claims against the company&#8217;s assets.<\/p>\n<p><u>WHOA proceedings<\/u><\/p>\n<p>There is no automatic stay of enforcement in WHOA proceedings. However, the company or the restructuring expert may request the court to impose a stay for a maximum period of four months, extendable by a further four months. In connection with the preparation of a composition plan, the court may separately suspend the foreclosure of a security right during the preparation and voting process for a period of up to eight months. The court will consider such a motion on the basis of a balance of interests between the secured creditor and the company involved. Contractual provisions in Dutch security documents that provide for termination, acceleration, enforceability of security or other rights upon the commencement of WHOA proceedings, or any step taken in connection therewith, are unenforceable.<\/p>\n<p>A confirmed WHOA plan may compromise secured claims, including by reducing the principal amount, extending maturities or converting debt to equity, subject to statutory protections for secured creditors (including a cash-out option and the requirement that the plan treatment is not worse than in a liquidation scenario). Any such modification of the secured liabilities will correspondingly affect the security granted to secure those liabilities.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Please comment on transactions voidable upon insolvency.<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p><em>Dutch law provides for avoidance of prejudicial transactions through the actio Pauliana, which is available both inside and outside formal insolvency proceedings.<\/em><\/p>\n<p><u>During bankruptcy<\/u><\/p>\n<p>In bankruptcy, the bankruptcy trustee (<em>curator<\/em>) is exclusively entitled \u2014 on behalf of all creditors \u2014 to invoke the actio Pauliana under the DBA to challenge transactions entered into by the debtor prior to the opening of proceedings. A successful challenge requires that the transaction was prejudicial to creditors \u2014 generally, that creditors receive a lower distribution as a result. The further requirements depend on whether the transaction was voluntary or pursuant to an existing obligation.<\/p>\n<p>A voluntary transaction may be challenged if:<\/p>\n<ol>\n<li>where the debtor received consideration: the debtor actually knew that creditors would be prejudiced, and the counterparty knew or should have known of that prejudice; or<\/li>\n<li>where the debtor received no consideration (a gratuitous act): it is sufficient that the debtor knew of the prejudice; the counterparty&#8217;s good faith is irrelevant.<\/li>\n<\/ol>\n<p>A transaction pursuant to an existing obligation may only be challenged if: (a) the counterparty had actual knowledge that a bankruptcy petition had been filed against the debtor at the time of performance; or (b) the transaction resulted from concerted action (<em>samenspanning<\/em>) between the debtor and the counterparty with the intent to give the counterparty preference over other creditors. The Dutch Supreme Court has interpreted both gateways strictly: awareness of financial difficulties or of an imminent petition is insufficient for limb (a), and mere preference without fraudulent intent is insufficient for limb (b). In practice, limb (b) is rarely successfully invoked.<\/p>\n<p>There is no fixed hardening or suspect period under Dutch law. However, statutory presumptions reverse the burden of proof in respect of certain categories of transactions entered into within one year prior to the bankruptcy order, including gratuitous acts, transactions for significantly disproportionate consideration, and transactions with affiliated or connected parties. For transactions falling within these categories, both the element of prejudice and the element of knowledge are presumed, and the counterparty bears the burden of rebuttal.<\/p>\n<p>The grant of security may be challenged on the same basis.<\/p>\n<p>A successful challenge by the bankruptcy trustee results in the counterparty being required to restore to the estate the value received (or the asset itself), which then becomes available for distribution to all creditors.<\/p>\n<p><u>Outside bankruptcy<\/u><\/p>\n<p>Outside insolvency proceedings, any individual creditor may invoke the actio Pauliana under the Dutch Civil Code to challenge a prejudicial transaction entered into by the debtor. A successful challenge results in the transaction being set aside as against the challenging creditor only. The knowledge requirements are broadly equivalent to those inside insolvency proceedings for onerous transactions, with both parties subject to an actual-or-constructive knowledge standard.<\/p>\n<p><u>Suspension of payments and WHOA<\/u><\/p>\n<p>Neither the administrator in suspension of payments proceedings nor the restructuring expert or observer in WHOA proceedings has standing to invoke the actio Pauliana under the DBA. This is a recognised gap in the WHOA framework. If a WHOA process fails and the company subsequently enters bankruptcy, the bankruptcy trustee appointed in the bankruptcy will have full standing to challenge transactions that occurred prior to the bankruptcy \u2014 including those occurring during the WHOA process itself. One important mitigation is available within the WHOA framework. A legal act performed after the debtor has filed a WHOA declaration or after a restructuring expert has been appointed cannot be challenged on the basis of the actio Pauliana, provided that the court has granted prior authorisation for that act.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Is set off recognised on insolvency?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p><em>Yes. Dutch law recognises both contractual and statutory set-off in insolvency proceedings.<\/em><\/p>\n<p>Contractual set-off provisions are effective in bankruptcy and suspension of payments proceedings and are commonly included in Dutch financing documents.<\/p>\n<p>In the absence of contractual arrangements, statutory set-off is available where the creditor and the debtor hold mutual claims that either (a) both arose before the opening of insolvency proceedings, or (b) arose after commencement from a pre-insolvency legal relationship. A claim acquired in bad faith (i.e. where the creditor knew or should have known that the debtor&#8217;s insolvency could reasonably be expected) cannot be set off. Similarly, a set-off effected shortly before the opening of proceedings may be reversed if the creditor acted in bad faith when acquiring the relevant claim or debt. In suspension of payments proceedings, the administrator may additionally set aside set-offs relating to debts acquired when the debtor&#8217;s bankruptcy could reasonably have been expected.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Are there any statutory or third party interests (such as retention of title) that may take priority over a secured lender\u2019s security in the event of an insolvency?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p><em>Yes, security interests can be subjected to a number of third-party priorities and statutory rights \u2014 including tax authority preferential rights, account bank set-off rights, good faith acquisition, and retention of title.<\/em><\/p>\n<p>The most important example of a priority right is the preferential right of the tax authorities (<em>bodemrecht<\/em>) under the Tax Collection Act, which entitles the tax authorities to recover unpaid tax claims from certain tangible movable property situated on the debtor&#8217;s premises with priority over a pledgee&#8217;s security interest (as explained in further detail under question 4.3 above).<\/p>\n<p>Retention of title can be validly applied in commercial contracts. Where a Dutch obligor&#8217;s inventory or equipment is subject to a retention of title arrangement, the relevant goods fall outside the insolvency estate and are not available to satisfy secured creditors. This is a practical risk in enforcement scenarios, particularly for pledges over inventory.<\/p>\n<p>As described under question 4.4 above, under the General Banking Conditions of the Netherlands, a Dutch account bank is entitled to set off amounts in credit and to create a pledge over credit balances in priority to other secured parties. To obtain effective first-ranking security over a bank account, the pledgee must ensure that the account bank waives these rights.<\/p>\n<p>More generally speaking, the validity and enforceability of security rights may be limited by statutory preferential rights and other rights of third parties which may be invoked against the holder of the security right, including the rights of third parties who acquired the pledged assets or an interest therein in good faith without knowledge of the security right.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Are there any impending reforms in your jurisdiction which will make lending into your jurisdiction easier or harder for foreign lenders?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p><u>EU Insolvency Directive Implementation<\/u><\/p>\n<p><em>The Netherlands is preparing to implement the EU Directive harmonising certain aspects of insolvency law, which will affect the restructuring landscape relevant to foreign lenders.<\/em><\/p>\n<p>In 2026, the Dutch government expects to work on implementing the European Directive on substantive insolvency law and has indicated it will pay attention to the international dimension of insolvencies. A proposal for a directive of the European Parliament and Council harmonising certain aspects of insolvency law is currently at the expert consultation phase in the Dutch legislative programme. Once implemented, this Directive is expected to further harmonise the conditions under which insolvent debtors can obtain a stay of individual creditor actions and the framework for pre-insolvency restructurings across EU Member States. For foreign lenders, this creates greater predictability regarding the treatment of their claims when a Dutch borrower is in financial difficulty.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">What proportion of the lending provided to companies consists of traditional bank debt versus alternative credit providers (including credit funds) and\/or capital markets, and do you see any trends emerging in your jurisdiction?<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p><em>The Dutch corporate lending market is predominantly bank-led but alternative credit providers are gaining ground, particularly in leveraged and sponsor-backed transactions, with the Netherlands emerging as one of Europe&#8217;s most active private debt markets.<\/em><\/p>\n<p>There is no single official Dutch statistic providing a precise bank\/non-bank split for corporate lending. Drawing on ECB data and our own proxy analysis of transaction data, traditional bank lending accounts for approximately 80% of total corporate lending in the Netherlands by volume, with alternative credit providers \u2014 including private debt funds and direct lenders \u2014 accounting for around 20%. The Dutch market broadly tracks the European average, reflecting its historically bank-centric financing structure.<\/p>\n<p>There is significant variation by transaction type. Alternative credit providers hold a materially higher share of leveraged buyouts, mid-market sponsor-backed transactions, and unitranche financings, where their structural flexibility and certainty of execution are particularly valued. Unitranche is the dominant structure in European private debt, representing 54% of European transactions, with 85% of transactions structured as first lien.<\/p>\n<p>The Netherlands is one of Europe&#8217;s most active private debt markets. Strategic alliances between banks and private credit funds are also emerging, taking various forms from distribution agreements to joint ventures, reflecting growing complementarity between the two. The Dutch market, as an open economy well-integrated into international capital flows, is well placed to benefit from this structural growth.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\t\t\t\t\t<li class=\"question-block filter-container__element\">\r\n\t\t\t\t\t\t<h3 class=\"filter-container__match-html\">Please comment on external factors causing changes to the drafting of secured lending documentation and the structuring of such deals such as new law, regulation or other political factors<\/h3>\r\n\t\t\t\t\t\t<button id=\"show-me\">+<\/button>\r\n\t\t\t\t\t\t<div class=\"question_answer filter-container__match-html\" style=\"display:none;\"><p><em>The Netherlands&#8217; open economy and integration into global finance positions it well to accommodate both bank and alternative credit providers, with Basel III\/CRR reform continuing to drive structural shifts in lender appetite and creating further space for private credit. ESG-linked loan structures, whilst growing, have not achieved the widespread adoption originally anticipated due to greenwashing concerns and monitoring burdens. Tightening AML obligations under the Wwft and the forthcoming AMLA framework are increasingly shaping the compliance provisions found in Dutch loan documentation.<\/em><\/p>\n<p>The Dutch lending market continues to perform well. As an open economy deeply integrated into global trade and finance, the Netherlands is well positioned to accommodate both traditional bank financing and the growing participation of alternative credit providers \u2013 a dynamic that continues to develop Dutch secured lending practice with alternative financing structures being implemented.<\/p>\n<p>Several external factors are shaping documentation and deal structuring.<\/p>\n<p>The ongoing implementation of Basel III\/CRR reform remains a significant structural driver. As banks face recalibrated risk-weighted asset charges for certain exposures, the economics of holding particular loans on balance sheet are affected, influencing lender appetite for specific asset classes and tenors. Private credit funds are increasingly able to offer liquidity to businesses that would not have access to bank finance because of regulatory capital constraints. We expect CRR-related considerations to remain a continuing feature of market practice.<\/p>\n<p>Sustainability-linked loans, green loans and transition loans saw significant growth in the Dutch market in the last few years, with ESG KPIs and margin ratchets becoming increasingly embedded in loan documentation. However, also given greenwashing and extensive monitoring considerations, this has not resulted in the widespread adoption by lenders and borrowers as originally expected.<\/p>\n<p>The Dutch <em>Wwft<\/em>, which implements successive EU Anti-Money Laundering Directives including the fourth and fifth AML Directives, imposes evolving AML and KYC obligations on lenders operating in the Netherlands, requiring enhanced due diligence on borrowers, guarantors, and security providers, as well as ongoing transaction monitoring and attention to UBO register requirements. Looking ahead, the establishment of the EU&#8217;s new Anti-Money Laundering Authority (AMLA) will further centralise and strengthen AML supervision across the EU, with the expectation that facility agreements and ancillary documentation will increasingly incorporate representations relating to AML compliance, anti-bribery and corruption.<\/p>\n<\/div>\r\n\r\n\r\n\t\t\t\t\t<\/li>\r\n\r\n\t\t\t\t\r\n<div class=\"word-count-hidden\" style=\"display:none;\">Estimated word count: <span class=\"word-count\">8838<\/span><\/div>\r\n\r\n\t\t\t<\/ol>\r\n\r\n<script type=\"text\/javascript\" src=\"\/wp-content\/themes\/twentyseventeen\/src\/jquery\/components\/filter-guides.js\" async><\/script><\/div>"}},"_links":{"self":[{"href":"https:\/\/my.legal500.com\/guides\/wp-json\/wp\/v2\/comparative_guide\/139184","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/my.legal500.com\/guides\/wp-json\/wp\/v2\/comparative_guide"}],"about":[{"href":"https:\/\/my.legal500.com\/guides\/wp-json\/wp\/v2\/types\/comparative_guide"}],"wp:attachment":[{"href":"https:\/\/my.legal500.com\/guides\/wp-json\/wp\/v2\/media?parent=139184"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}