Corporate law: directors’ liability, shareholder disputes and bankruptcy

Written by Onur Arslan, lawyer at Arslan Advocaten. Registered in the areas-of-law register of the Netherlands Bar for employment law and personal injury. Last updated: 19 September 2026.

This page covers three situations: a director who is held personally liable, shareholders who can no longer get along, and a business that has stopped paying — yours or your customer’s. For each topic: what the law says, what the dispute is about and what you need to do now.

One warning up front: the dispute resolution rules for shareholders were changed substantially on 1 January 2025 and the article numbers have shifted. Much of what you find online about expulsion and withdrawal still refers to the old rules. Below you will find the text currently in force.

In a conflict within your business, your goal determines the route. Do you want to challenge a resolution, obtain information, restore the cooperation or transfer shares? Start with the articles of association, the shareholders’ agreement and up-to-date financial information. Shareholder proceedings, an inquiry and a directors’ liability case each have different requirements and consequences.

Read about choosing a route in a shareholder dispute or the explanation of leaving a private limited company (bv). If you are a creditor of a dissolved bv, look at your options after a turbo liquidation.

When am I personally liable as a director?

As a director, you are in principle not personally liable for the company’s debts; that only changes when you can personally be seriously blamed — towards the company itself under article 2:9 of the Civil Code, or towards a third party on the basis of tort. The business risk lies with the company; the threshold for breaking through it is high. Three tracks run side by side, each with its own claimant, standard and burden of proof.

Internal liability. Article 2:9(1) of the Civil Code provides that each director owes the legal entity a proper performance of his duties. Paragraph 2 adds that each director bears responsibility for the general course of affairs and "[is] liable in full for improper management, unless, also in view of the duties assigned to others, he cannot be seriously blamed and he has not been negligent in taking measures to avert the consequences of improper management". Source: article 2:9 of the Civil Code, wetten.overheid.nl.

Liability is therefore collective — the entire board, including for a co-director’s area — while the way out is individual. A director who wants to exculpate himself must show that the task lay with someone else and that he himself did not sit still. A director who raised the alarm internally and recorded that in writing is in a fundamentally different position from a director who pleads ignorance.

The holding company does not protect you. Article 2:11 of the Civil Code provides that the liability of a legal entity acting as director "[rests] jointly and severally also on every person who is a director of that legal entity at the time the liability arises": it passes through to the natural person behind the personal holding company. If the holding company’s liability is based on tort, the director behind it may, however, argue and if necessary prove that he personally cannot be seriously blamed (ECLI:NL:RBZWB:2017:7468).

The distribution test. Under article 2:216(2) of the Civil Code, a distribution to shareholders — a dividend, a repayment, a buy-back — must be approved by the board, and the board refuses that approval if it knows or should reasonably foresee that the company will then no longer be able to pay its debts as they fall due. If that goes wrong, the directors who knew or should have foreseen this are, under paragraph 3, jointly and severally liable for the shortfall caused by the distribution, with statutory interest from the day of the distribution. A shareholder who received the distribution while knowing or while he should have foreseen this must also repay, up to at most the amount received. A dividend resolution adopted in good times that later turns out not to have been supported by the company’s liquidity is therefore an underestimated risk.

When can a creditor hold me personally liable for an unpaid invoice?

Only when you can personally be seriously blamed — in practice mainly when you entered into an obligation while you knew or should have understood that the company would not perform it and would offer no means of recovery, or when you steered payments in such a way that this particular creditor remained unpaid. The mere fact that an invoice remains unpaid never gives rise to directors’ liability. Not even if the bv is empty.

The District Court of The Hague: "A high threshold applies to such directors’ liability. It requires that the director can personally be seriously blamed for the prejudice caused. The answer to the question whether the director can personally be seriously blamed depends on the nature and seriousness of the breach of the standard and the other circumstances of the case." (ECLI:NL:RBDHA:2026:14022.)

Within that standard, two types of case are distinguished:

The standard for the second type of case comes from Supreme Court 8 December 2006, ECLI:NL:HR:2006:AZ0758 (Ontvanger/Roelofsen), applied among others in ECLI:NL:GHARL:2022:5669.

Important for the defence: inability to pay is not in itself serious blame. The Court of Appeal of Arnhem-Leeuwarden held that there "will generally be no" serious personal blame "if the company is unable to pay" (ECLI:NL:GHARL:2026:30). A director who gets into difficulty honestly and communicates it that way is therefore in a stronger position than one who keeps ordering while the door has already closed.

What makes a case against a director strong: continuing to order after the director knew the coffers were empty; paying selectively, especially to related parties or to the director himself; transferring assets to a new company; leaving reminders unanswered while the business had in fact already ceased trading.

By way of illustration. A supplier makes two more deliveries to a bv that has been months behind with its payments. The director keeps ordering while knowing that no more money is coming in and that the company will not be able to pay these invoices. After the bankruptcy the supplier is left empty-handed and wonders whether he can hold the director himself liable. The question is then not whether things ended badly, but whether, when placing those last orders, the director knew or should have understood that the company would not be able to perform and would offer no means of recovery. This is an example situation illustrating the rule, not a case handled by our firm.

Directors’ liability in bankruptcy: when will the trustee come after me?

In bankruptcy, each director is jointly and severally liable under article 2:248(1) of the Civil Code for the deficit in the estate if the board has manifestly improperly performed its duties and it is plausible that this is an important cause of the bankruptcy. That is a heavier standard than merely running a business badly: it concerns conduct that no reasonably thinking director would have engaged in.

The District Court of Arnhem: "Improper management is not merely a matter of falling short, but of conduct that a reasonably thinking director could not have engaged in." (ECLI:NL:RBARN:2005:AU2334.)

The evidential presumption: this is where the case is decided

Article 2:248(2) of the Civil Code reverses the burden of proof as soon as the accounts are not in order or the annual accounts were filed late. The text leaves nothing to be desired in terms of clarity: if the board has not complied with its obligations under article 2:10 or article 2:394 of the Civil Code, it "has improperly performed its duties and it is presumed that improper performance of duties is an important cause of the bankruptcy". Only "an insignificant omission is not taken into account".

That is a double blow:

1. The improper management is established; no evidence to the contrary is admitted (see ECLI:NL:GHDHA:2025:2783, referring to the legislative history).
2. The causal link is presumed. That presumption can be rebutted: the director must make it plausible that other, external causes led to the bankruptcy. That can succeed — see ECLI:NL:RBHAA:2006:AY6199.

The two obligations that matter

Note: the period of thirteen months that you still often read online — and that is correctly mentioned in older judgments — is no longer the applicable period. For drawing up the accounts, article 2:210(1) of the Civil Code applies: within five months after the end of the financial year, extendable by the general meeting by at most five months on the grounds of special circumstances. Source: articles 2:210 and 2:394 of the Civil Code, wetten.overheid.nl.

If in a bv every shareholder is also a director, signing of the annual accounts by all directors and supervisory directors also counts as adoption under article 2:210(5) of the Civil Code — provided that all other persons entitled to attend meetings have been given the opportunity to take note of them and have agreed to this method of adoption, and the articles of association do not exclude it.

What the law does still offer you

The latter is the mirror image of the holding structure: a formal dismissal or removal from the Chamber of Commerce register does not protect you if in fact you have stayed at the controls. Conversely, a shareholder who is closely involved in the management can still be held liable this way.

The trustee almost always starts his investigation with the accounts and the trade register — the cheapest route to the evidential presumption. Article 68(2) of the Bankruptcy Act (Faillissementswet, Fw) expressly instructs him to examine whether there are irregularities that contributed to the bankruptcy, complicate the winding-up or increased the deficit. In a bankruptcy, therefore, gather your accounts and proof of filing immediately and hand them over in full.

Shareholder conflict in a bv: what routes are available?

In a shareholder dispute there are in principle four routes: negotiating on the basis of the articles of association and the shareholders’ agreement, expelling the other shareholder, withdrawing yourself, and inquiry proceedings before the Enterprise Chamber — with the first route in practice being by far the fastest and cheapest. Which route fits depends on what you want to achieve: getting rid of the other party, getting out yourself, or making the business governable again.

Start with the paperwork. In many bvs a shareholders’ agreement was never concluded, or it consists of an old template that was never updated. That is why these conflicts go off the rails: there is no agreed way out, and then only the court remains. If the articles of association or an agreement do contain a dispute resolution arrangement, article 2:337(1) of the Civil Code applies: a deviation from the statutory rules contained in it cannot be relied on insofar as it makes the transfer of shares impossible or extremely onerous. Paragraph 2 allows disputes of this kind to be submitted to arbitration.

A recurring point of contention is the shareholder loan: money that a shareholder put into the business without recording whether it was a loan or capital. When the relationship breaks down, that becomes a separate dispute on top of the share dispute. Record such contributions at the moment you make them.

By way of illustration. Two partners each hold half of the shares. They no longer agree on almost anything, one keeps the other out of the accounts and resolutions are no longer adopted. One wants out, but no buyer can be found and they cannot agree on the price. The question is then which route fits: withdrawing and making the other pay, or expelling the other because his conduct harms the company. That distinction determines who has to substantiate which allegation. This is an example situation illustrating the rule, not a case handled by our firm.

Leaving a bv as a shareholder: how does withdrawal work?

A shareholder whose rights or interests have been harmed by the conduct of co-shareholders to such an extent that continuing as a shareholder can no longer reasonably be expected of him may ask the Enterprise Chamber, under article 2:343(1) of the Civil Code, to order those co-shareholders to take over his shares. That is the withdrawal claim, and since 1 January 2025 it is brought directly before the Enterprise Chamber of the Amsterdam Court of Appeal instead of the ordinary district court.

Three points from the revised rules that you will not find in older explanations.

1. You can also bring the claim against the company itself. Article 2:343(1), second sentence, of the Civil Code allows the Enterprise Chamber to order the company to take over the shares, on the basis of conduct of co-shareholders or of the company itself. That helps when your co-shareholder has no private funds but the business does; the capital protection rules of articles 2:98 and 2:207 of the Civil Code continue to apply.

2. The price can be adjusted upwards. Article 2:343(3) of the Civil Code allows, on request, "a fair increase" in connection with conduct of the defendant or of others, if it is plausible that this led to a reduction in value that should not, or not fully, be borne by you. Someone who first empties the bv and then wants to buy you out at the reduced value will therefore not simply get away with it.

3. The other party is given the chance to resolve it. Under paragraph 5, the Enterprise Chamber may stay its decision if the company or co-shareholders undertake measures that remove or limit your disadvantage.

How the price is determined. If the claim is granted, the Enterprise Chamber in principle appoints experts to report in writing on the price (article 2:339(1) of the Civil Code). That may be dispensed with if the parties agree, or if the articles of association or an agreement contain a clear standard (paragraph 3). However, under article 2:340(3) of the Civil Code the Enterprise Chamber does not take such a contractual standard into account insofar as it would lead to a manifestly unreasonable price. An old clause that values your shares at nominal value is therefore not the end of the line.

Time and costs. An expert valuation costs money and months. In the same decision, the Enterprise Chamber determines who bears those costs and may also place them with the company or divide them between the parties (article 2:340(1) of the Civil Code). Withdrawal proceedings generally take more time than a negotiated exit.

Buying out or expelling a co-shareholder: can it be forced?

Yes, but only if that shareholder’s conduct harms or has harmed the interests of the company to such an extent that his continued shareholding cannot reasonably be tolerated, and only at the request of shareholders who together provide at least one third of the issued capital. That is the expulsion claim of article 2:336a(1) of the Civil Code.

Here too, the rules were broadened on 1 January 2025. The standard now refers to conduct "whether or not in the capacity of shareholder" that "harms or has harmed" the interests of the company "to such an extent". Conduct outside the capacity of shareholder — misconduct as an employee, competition through another company — therefore counts, and because of "or has harmed" so does past conduct that has since stopped.

Note what the standard is not: it concerns harm to the interests of the company, not to your interests as a co-shareholder. A difference of opinion about the company’s direction is not in itself a ground for expulsion. If you yourself are stuck, you must withdraw (article 2:343 of the Civil Code).

• The claim can not be brought by the company itself or by a subsidiary (article 2:336a(2) of the Civil Code).
• The Enterprise Chamber may stay its decision if the company or shareholders undertake measures that remove or limit the company’s disadvantage (paragraph 5).
• Related claims between the same parties — or between a party and the company — can be included in the same proceedings, by petition (paragraph 6). That saves second proceedings about, for example, a current-account debt or a breach of a non-compete clause.
• From service of the petition until the decision has become final, the defendant can in principle not transfer, pledge or encumber his shares with a usufruct (article 2:338(1) of the Civil Code). A provisional measure can also be requested, which is dealt with as a matter of the utmost urgency (paragraph 3).

The timing of filing therefore matters: the petition freezes the opposing party’s shareholding.

When do inquiry proceedings before the Enterprise Chamber make sense?

An inquiry makes sense when you cannot establish the facts and the business is meanwhile ungovernable or unsafe: the Enterprise Chamber grants the request as soon as there appear to be well-founded reasons to doubt the correctness of the policy or the course of affairs, and pending the proceedings it can order immediate measures that break the deadlock. That test for granting the request is in article 2:350(1) of the Civil Code; the power to order immediate measures in article 2:349a(2) of the Civil Code.

For most business owners, the real value lies not in the investigation but in those measures: temporary appointment of an independent director, suspension of a director, or temporary transfer of shares for administration purposes — so that the voting rights lie with a third party and a blocking shareholder can no longer paralyse the company. This is also possible before an investigation has been ordered, but then article 2:349a(3) of the Civil Code imposes the additional requirement of well-founded reasons in the provisional opinion of the Enterprise Chamber.

Are you entitled to apply? This is where requests fail. For a bv or nv with an issued capital of at most € 22.5 million, article 2:346(1)(b) of the Civil Code gives standing to: holders of shares or depositary receipts who alone or together represent at least one tenth of the issued capital, or are entitled to shares or depositary receipts with a nominal value of € 225.000, or such lower amount as the articles of association provide. Above € 22.5 million, sub c requires one hundredth. The legal entity itself can also request an inquiry (sub e), and in bankruptcy so can the trustee (article 2:346(3) of the Civil Code).

Costs and risk. If the request is granted, the Enterprise Chamber sets the maximum amount of the investigation and the legal entity pays the costs of the investigation (article 2:350(3) of the Civil Code). If it is rejected and the Chamber finds that it was not made on reasonable grounds, the legal entity can claim damages under paragraph 2. An inquiry used as a means of pressure without substantiation is therefore not without risk.

And afterwards. If the report shows mismanagement, measures can be requested within two months after it has been filed at the court registry (article 2:355 of the Civil Code). Article 2:356 of the Civil Code lists them exhaustively: suspension or annulment of resolutions; suspension or dismissal of directors or supervisory directors; temporary appointment of directors or supervisory directors; temporary deviation from the articles of association; temporary transfer of shares for administration purposes; and dissolution of the legal entity.

What the inquiry does not do: it does not award damages and does not establish liability. The report does, however, provide factual material that carries great weight in later liability proceedings.

When is a resolution of the general meeting null and void or voidable?

A resolution that conflicts with the law or the articles of association is in principle null and void — it never existed; a resolution adopted in breach of the rules on decision-making, of reasonableness and fairness or of internal regulations is voidable and remains valid until the court annuls it. That distinction is set out in articles 2:14 and 2:15 of the Civil Code, and it determines what you need to do and how much time you have.

That one-year limitation period (article 2:15(5) of the Civil Code) is the most important rule here. If you are too late, you have lost your chance to challenge the resolution — however defectively it was adopted. In conflicts where months are spent on e-mail exchanges, that is a real risk.

The classic defects: late or incorrect notice of the meeting, notice sent to the wrong address, failing to put the item on the agenda, bypassing a person entitled to attend meetings who has no voting right but must be heard, and decision-making outside a meeting without the conditions having been met. They look like formalities; they are the points of attack on which a shareholders’ resolution falls.

Finally, note article 2:210(3) of the Civil Code: adoption of the annual accounts does not operate as a discharge of a director or supervisory director. Discharge is a separate resolution — and in bankruptcy it does not help the director against a claim under article 2:248 of the Civil Code in any event.

Dismissing a statutory director: why it works differently from ordinary dismissal

A statutory director can be suspended and dismissed at any time by the body authorised to appoint him — as a rule the general meeting — and no permission from the UWV or dissolution by the subdistrict court is required for this. That follows from article 2:244(1) of the Civil Code in conjunction with article 7:671(1)(e) of the Civil Code, which exempts the director of a legal entity from the requirement of written consent or prior permission.

The reason is in article 2:244(3) of the Civil Code: "An order to reinstate the employment contract between the company and the director cannot be made by the court." Because reinstatement is excluded, the reason for the preventive review falls away. The corporate-law dismissal in principle also ends the employment contract. That does not mean the company has free rein:

• The transition payment is still due if the statutory conditions are met. See transition payment.
• In addition, fair compensation may be at issue if the termination is seriously culpable.
• The notice period and any contractual arrangements — bonus, non-compete clause, indemnity, directors’ liability insurance — continue to apply in full.
• The decision-making must be correct. A dismissal resolution adopted without proper notice of the meeting, without the director having been heard on the proposed dismissal, or without him having been able to cast his advisory vote, can be challenged via articles 2:14 and 2:15 of the Civil Code. In practice, this is where most of the negotiating room lies, on both sides of the table.
• The articles of association may prescribe a qualified majority; under article 2:244(2) of the Civil Code it may not exceed two thirds of the votes cast, representing more than half of the issued capital.

If you are both a shareholder and a statutory director, two relationships run through each other: your position as director can be ended by a majority resolution, your shareholding cannot. Dismissal and shareholder dispute must then be resolved in a single process — otherwise you lose your position and remain stuck for years as a minority shareholder without influence.

More on the employment-law side: dismissal and settlement agreement.

Filing for a debtor’s bankruptcy: does it work as a debt collection tool?

As a means of pressure it regularly works, as a means of recovery rarely: a bankruptcy petition generally leaves you with an estate in which unsecured creditors receive little or nothing, even though the petition itself is quick and relatively cheap. The choice is therefore tactical, not legal.

Article 1(1) of the Bankruptcy Act (Faillissementswet, Fw) provides that a debtor who has ceased to pay is declared bankrupt on his own application or at the request of one or more creditors. Article 6(3) of the Bankruptcy Act adds the test: the bankruptcy order follows if facts or circumstances demonstrating that situation are summarily shown, and — in the case of a creditor’s petition — also that creditor’s right of claim. The Court of Appeal of ‘s-Hertogenbosch formulated that double test as it having been summarily shown (1) that the petitioning creditors had rights of claim existing at the time of the petition and (2) that the debtor was in the situation of having ceased to pay (ECLI:NL:GHSHE:2025:2287).

What you need:

A bankruptcy petition requires, among other things, a sufficiently plausible right of claim, a plurality of creditors and the situation of having ceased to pay. A dispute about the claim must be assessed on its merits; it does not in every case automatically lead to rejection. Investigate the legal basis, the evidence and the cost risks beforehand.

The plurality requirement is not a formality: declaring someone bankrupt who has only one creditor does not fit the purpose of bankruptcy — the distribution of the assets among the creditors jointly (opinion ECLI:NL:PHR:2023:834). In practice, other unpaid debts that have been made plausible are sometimes accepted, for example as shown by filed annual accounts with sharply increased short-term debts (compare ECLI:NL:RBMNE:2026:4523).

A disputed claim calls for a separate choice of route. A dispute about the claim requires a substantive assessment. It does not automatically lead to rejection of a bankruptcy petition. Investigate whether the right of claim is summarily shown, whether there are several creditors and whether the debtor is in the situation of having ceased to pay. Weigh the petition against collection proceedings, summary proceedings or attachment.

Is payment made under pressure of the petition? Article 47 of the Bankruptcy Act allows payment of a debt that has fallen due to be avoided if it is shown that the recipient knew that bankruptcy had already been applied for, or that the payment was the result of consultation aimed at preferring that creditor over others. A payment you collect after your petition can therefore be reclaimed by the trustee.

For the regular route: debt collection.

My own business can no longer pay its bills: what now?

The moment you need to act comes before the moment you run out of money: from the point at which you know or should understand that the company will not meet its obligations and will offer no means of recovery, every new obligation you enter into becomes a personal risk. That is the Beklamel standard from the section above — and the reason why carrying on and hoping things work out is the most expensive decision a director in distress can make.

What needs to happen in that phase:

1. Put your accounts and filings in order. The cheapest insurance against article 2:248(2) of the Civil Code there is. If you are behind, this is the first action.
2. Stop paying selectively. Payments to yourself, your holding company or related parties while third parties remain unpaid are the pattern that trustee and creditor alike pick up on immediately.
3. Do not enter into obligations that you cannot reasonably meet, and be honest with suppliers.
4. Record the decision-making. Minutes, forecasts, advice and the considerations behind your choices later form your file; reconstructing them afterwards does not work.
5. Investigate whether there is an alternative. A negotiated arrangement with creditors, refinancing, the sale of part of the business or a court-facilitated compulsory composition may be options. Whether that has a chance of success depends on the nature of the debts and on operational viability; that must be assessed case by case.
6. Get advice before you file for bankruptcy. Filing yourself affects your personal position, your staff and ongoing contracts.

Your contracts. Bankruptcy does not automatically end ongoing agreements. For reciprocal agreements that have not yet been (fully) performed, the other party can, under article 37 of the Bankruptcy Act, set the trustee a reasonable period to state whether he will honour the agreement; if he declares that he is not willing, he loses the right to claim performance, and if he declares that he is willing, he must provide security. Two contracts have their own regime:

For articles 37, 39 and 40 of the Bankruptcy Act, the trustee needs authorisation from the supervisory judge (article 68(3) of the Bankruptcy Act). If you disagree with an act of the trustee, as a creditor or as the bankrupt party you can turn to the supervisory judge under article 69 of the Bankruptcy Act; the supervisory judge decides within three days, after hearing the trustee.

Restart after bankruptcy. Article 7:666 of the Civil Code provides that the rules on transfer of undertaking — including article 7:663 of the Civil Code, which transfers rights and obligations under employment contracts to the transferee by operation of law — do not apply when the employer has been declared bankrupt and the undertaking forms part of the estate. The buyer therefore does not automatically take over the staff. There has been a lot of debate about this rule in recent years; have a specific restart assessed in advance, because the consequences of a miscalculation lie with the buyer.

Who gets what in a bankruptcy? The order of priority in outline

The starting point is that all creditors have an equal right to be paid in proportion to their claims — save for the grounds of priority recognised by law, and in practice those exceptions are so extensive that often little remains for ordinary trade creditors. That main rule is in article 3:277(1) of the Civil Code: after payment of the costs of enforcement, creditors are paid from the net proceeds in proportion to each one’s claim.

Under article 3:278 of the Civil Code, priority arises from pledge, mortgage and statutory preference and from the other grounds specified by law; preferences arise only from the law. Article 3:279 of the Civil Code adds: pledge and mortgage rank above preference, unless the law provides otherwise. In outline, the money is then distributed as follows:

As a supplier, your position is determined at the moment you conclude the agreement, not at the moment your customer goes bankrupt. A retention of title, right of pledge, bank guarantee or advance payment arrangement is the difference between secured and unsecured creditor — and the only place where you can influence this risk.

My employer is going bankrupt: what does the UWV take over?

Under Chapter IV of the Unemployment Insurance Act (Werkloosheidswet), the UWV takes over part of the payment obligation: wages for at most thirteen weeks before the end of the employment, wages for at most the notice period, and holiday pay, holiday allowance and certain amounts owed to third parties for at most the preceding year. This is the wage guarantee scheme, also known as the insolvency benefit.

Article 61 of the Unemployment Insurance Act gives entitlement to a benefit when the employee has a claim for wages, holiday pay or holiday allowance against an employer "who has been declared bankrupt, who has been granted a suspension of payments, to whom the statutory debt restructuring scheme for natural persons applies, or who is otherwise in the permanent situation of having ceased to pay". So there does not have to be a bankruptcy: permanent inability to pay is sufficient.

Article 64(1) of the Unemployment Insurance Act describes what is taken over:

The benefit is capped: for the wage component, per calendar month at most 100/108 of one and a half times the maximum daily wage under article 17(1) of the Social Insurance Financing Act (Wet financiering sociale verzekeringen), multiplied by 21.75 (article 64(4) of the Unemployment Insurance Act). The UWV states that limit as "at most 150% of the maximum daily wage". Sources: articles 61 and 64 of the Unemployment Insurance Act, wetten.overheid.nl; UWV, applying for a benefit due to insolvency.

Three points where things go wrong:

• Report in time. Article 63 of the Unemployment Insurance Act requires the employee to report to the UWV within one week after the day on which he should normally have received his wages, and within one week after the day on which it should reasonably have become clear to him that the employer is in that situation. The UWV also warns that an application submitted too early will be rejected.
• If your employment had already ended before the employer got into that situation, there is in principle no entitlement — unless one of the exceptions of article 62 of the Unemployment Insurance Act applies, including a clear connection between the circumstances that led to the end of the employment and those that led to the inability to pay.
• The transition payment is not listed in article 64 of the Unemployment Insurance Act. The UWV therefore in principle does not take it over. Anyone entitled to it has to submit that claim in the bankruptcy, with all the uncertainty about payment that entails. For the payment itself, see transition payment.

Business acquisition: where do due diligence and warranties go wrong?

In most disputes after an acquisition, it turns out not that the buyer investigated too little, but that what he found was not translated into the purchase agreement: the risk was seen but not allocated. Due diligence and warranties are communicating vessels: what you investigate and accept is harder to claim afterwards as a setback; what you did not investigate but did obtain a warranty for is covered contractually.

Apart from what the parties agree themselves, the statutory basis is limited:

• Mistake, article 6:228 of the Civil Code: an agreement concluded under the influence of a mistake, which would not have been concluded had the facts been correctly understood, is voidable if the mistake is due to information from the other party, if the other party should have informed you about what it knew or should have known, or if both parties proceeded on the same incorrect assumption. Paragraph 2 limits this: a mistake that should remain for your own account does not count.
• The duty to complain, article 6:89 of the Civil Code: you can no longer rely on a defect in the performance if you did not protest within a reasonable time after discovering it — or after you should reasonably have discovered it. This is where buyers who deliberate internally for months come unstuck.

What goes wrong in purchase agreements:

The order that works: first identify the risks from the investigation, then choose for each risk between a price adjustment, an indemnity, a warranty or a condition precedent, and only then write the text. Anyone who first takes a template and then investigates ends up with an agreement in which the risks found appear nowhere.

Collection of business claims: what can you claim?

In a commercial agreement between businesses, statutory commercial interest in principle runs by operation of law, even without a notice of default: from the day after the agreed final payment date, and failing that from thirty days after receipt of the invoice or of the performance. That is set out in article 6:119a of the Civil Code, which defines a commercial agreement as a contract for consideration between businesses or legal entities that obliges one or more parties to give or do something.

Two provisions to use:

• Commercial interest is higher than ordinary statutory interest and is compounded: under article 6:119a(3) of the Civil Code, the amount on which the interest is calculated is increased at the end of each year by the interest due for that year.
• A separate regime applies to public-authority debtors, article 6:119b of the Civil Code, with in principle the same system.

What makes business debt collection succeed is rarely the interest rate. It is: a claim that is properly substantiated with an order, delivery and invoice; general terms and conditions that were demonstrably provided before or when the agreement was concluded; and speed. Every month you wait worsens your recovery position vis-à-vis creditors who do press on.

With a debtor who does not pay, the appropriate route depends on the legal basis, the evidence, the prospects of recovery and the urgency. Attachment, collection proceedings or a bankruptcy petition each have their own requirements and cost risks. A substantive defence does not automatically make proceedings unavoidable and does not simply rule out a bankruptcy petition; assess the dispute and also explore an amicable solution. See also debt collection.

When should you instruct a corporate law lawyer?

At the moment you can still choose — not at the moment a deadline is about to expire or a trustee gets in touch. This area of law has a number of hard limits that cannot be repaired afterwards.

What we do is usually less spectacular than the proceedings themselves: putting the facts and documentation in order, assessing which route actually serves your goal, and weighing costs and duration against what there is to gain. In shareholder conflicts it applies almost without exception that a negotiated exit is faster and cheaper than proceedings — but that a credible procedural stick is needed to get those negotiations going.

About this advice

Arslan Advocaten advises and litigates for business owners from offices in The Hague, Rotterdam, Amsterdam, Utrecht, Tilburg and Eindhoven: directors’ liability, shareholder disputes and inquiry proceedings, bankruptcy and restarts, business acquisitions and business debt collection. In addition to Dutch, we speak Turkish and Polish.

Call 070 450 0300 or present your situation via the contact form. We will tell you where you stand, which deadlines are running and what the next step is.

This page provides general information and is not legal advice about your own case. No rights can be derived from the principles set out.

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